COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug and one charge of possession of a dangerous drug before a magistrate on 12 December last year. In respect of the 1st charge, it is alleged that on the 29th day of October 2023, outside Hei Wah House in Lok Wah South Estate, Ngau Tau Kok, he unlawfully trafficked in 42.66 grammes of heroin hydrochloride narcotic. In respect of the 2nd charge, it is alleged that on the same day, inside a flat on the 28th floor of that building, he had in his possession 5.15 grammes of heroin hydrochloride narcotic.
According to the Summary of Facts to which he pleaded guilty and admitted, on the 29th day of October 2023 at about 8.35 am, the police intercepted the defendant as he left the said Hei Wah House in Lok Wah South Estate, and that in the shoulder bag that was carried by him they found a total of 245 packets containing a total of 52.28 grammes of a mixture containing 42.66 grammes of heroin hydrochloride, that is, the subject of the 1st charge.
Later they escorted him to his flat on the 28th floor of the building and they entered the flat with the use of the key seized on the defendant. Inside the flat, the police seized from a table in the living room one bag containing 6.33 grammes of a mixture containing 5.15 grammes of heroin hydrochloride and 12 resealable plastic bags.
Upon his arrest for the heroin seized, in respect of the heroin found in the shoulder bag he admitted that he was trafficking for others because he was in debt. In respect of the drug found in his flat, he claimed that they were for his own self-consumption.
In a later video-recorded interview he stated that he owed others about $30,000 due to his heroin habit, and somebody called ‘Ah Keung’ gave the heroin to him and asked him to help delivery for $500 reward. Ah Keung also gave him the small bag of heroin seized in the flat for consumption for free.
The defendant said he had been addicted to heroin for 40 years, and he would consume the heroin by injection. He consumed heroin about three times a day and he usually consumed the drug in public toilets.
Police investigation revealed that both the defendant and his wife are the registered tenants of the flat since 2008.
The estimated street value of all the heroin seized from the defendant and also from his flat was about HK$46,534.
The defendant now admits that he was in possession of the heroin seized on him for unlawful trafficking and that he was in possession of heroin seized from his flat.
In mitigation, counsel Mr Charles Chiu informed me that the defendant is a retired person who is now living on CSSA. According to the antecedent statement of the defendant, he is now 71 years of age. He was separated from his wife since 2020. He graduated from the 6th grade in a mainland primary school.
His criminal record reveals that he has an appalling record since 1966. He has a total of 38 convictions for different offences including convictions for six charges of trafficking in dangerous drug, 10 charges of possession of dangerous drug and four charges of possession of equipment fit for consumption of dangerous drugs.
His last conviction was dated back to 30 August 2011. He was sentenced to a term of 4 weeks’ imprisonment, suspended for two years, for the offence of theft, and he was last discharged from prison on 24 October 2003. Counsel drew to my attention the fact that he had not been in trouble, and he had not been prosecuted and brought before a court for over 13 years.
In respect of the 2nd charge, counsel informed me that he obtained the drug free of charge for his own consumption, and it was Ah Keung who had asked him to deliver the drug in return for a reward. He did not get the reward, and he is now remorseful for his misdeeds.
Counsel urged me to accept that his role was only one of a storekeeper or a courier, and that I should sentence him according to this role. Counsel asked this court to take into account his timely plea to the charge, and he should be fully entitled to the one-third discount.
In respect of the 1st charge, counsel said that he was not the mastermind of the drug deal, and in respect of his appalling criminal record, counsel urged this court to exercise its discretion not to enhance the sentence because he had been out of trouble for over 13 years.
In respect of the 2nd charge, counsel submitted that apart from the risk of him sharing or selling some of the drug and that he has a previous criminal conviction, in fact, there was no other aggravating feature and that there was no high latent risk because of his long-term addiction to drug and his heavy reliance on the dangerous drug.
Counsel also urged me to take into account the principle of totality and exercise my discretion to impose a concurrent term for both charges.
In sentencing the defendant for the 1st charge, I bear in mind the approach to sentencing for the offence of trafficking as laid down by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I also bear in mind the principles stated in the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
Having regard to the facts of the present case including the admission made by the defendant, I accept that his role was only one of a courier, and that at the material time he was making delivery for the person called Ah Keung. Therefore his sentence for the 1st charge is to be determined primarily by reference to the relevant guidelines and the quantity of the drug concerned.
According to the new guidelines of HKSAR v Huang Ruifang [2025] HKCA 234, the starting point for trafficking between 10 to 50 grammes of heroin should be 5 to 8 years’ imprisonment.
Charge 1 involves a total of 42.66 grammes of heroin hydrochloride. On a pure arithmetic approach, a starting point of 7 years and 5 months’ imprisonment would be appropriate. The arithmetic approach is suitable for the courier or storekeeper who is recognised to be at the lowest rank in the trafficking hierarchy.
Taking into account the facts of this case, the role of the defendant as a courier only and all the circumstances, I will adopt 7 years and 5 months as the starting point for the 1st charge.
I have considered the aggravating feature of his appalling criminal record, but I do bear in mind the fact that he had not been in trouble for over 13 years. Taking into account his elderly age, that he is now 71 years old, I will not enhance the starting point for any aggravating factor. So 7 years and 5 months is the ultimate starting point that I will adopt for the 1st charge after trial.
The defendant pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount. There being no other mitigating factor, this is the extent of discount he is entitled to. So in respect of the 1st charge he is sentenced to 4 years and 11 months’ imprisonment.
The 2nd charge involves a total of 5.15 grammes of heroin hydrochloride. I have taken into account the background of the defendant. There is no doubt that he has been abusing drugs for a long time, indeed, for over 40 years. I also take into account his criminal record especially for possession of dangerous drug and the possession of equipment for consumption of dangerous drug, and the amount of the heroin hydrochloride involved in the 2nd charge.
I consider that the appropriate starting point for the 2nd charge should be one of 12 months’ imprisonment. Again, giving him the one-third discount for his early plea of guilty, he is sentenced to 8 months’ imprisonment for the 2nd charge.
Coming to the ultimate sentence for both charges. I do bear in mind the principle of totality. If the amount of the heroin hydrochloride in the 2nd charge had been part of the drug in the trafficking charge, it would have made only a slight difference of 5 months’ imprisonment. I also take into account the fact that the latent risk of the drug involved in the 2nd charge can be subsumed into the final sentence.
Therefore, in view of his age and all the circumstances, the facts of the case and also the totality principle, it would be appropriate to order the sentences of both charges to be served concurrently.
Therefore I would impose a completely concurrent sentence for both charges, and the ultimate sentence for the defendant is one of 4 years and 11 months’ imprisonment. That is the sentence that I would impose.