HKSAR v. XU JING

HCCC 361/2023

[2024] HKCFI 2270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 361 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs before Magistrate Ms. Vivian Ho, admitted to the summary of facts, and was on 9 November 2023 ordered to be committed to the Court of First Instance for sentence.

PARTICULARS OF COUNT 1

2.  The defendant on 24 April 2021, outside no.10 Shan Ha, Pa Mei Road, Tung Chung, Lantau, unlawfully trafficked in dangerous drugs, namely 496g of a crystalline solid containing 482g of methamphetamine hydrochloride (commonly referred to as ‘ice’)  and 284g of a solid containing 215g of ketamine.

PARTICULARS OF COUNT 2

3.  The defendant on the same day, at 1^st floor of no.10 Shan Ha, Pa Mei Road, Tung Chung, unlawfully trafficked in dangerous drugs, namely 243.9g of a crystalline solid containing 236.87g of methamphetamine hydrochloride, 79.22g of a solid containing 71.65g of cocaine, and 742.9g of a solid containing 643.9g of ketamine.

SUMMARY OF FACTS

4.  Police officers intercepted the defendant when she came out of the residential building at no.10 Shan Ha on the charge date at around 5:10pm.

5.  Upon search, the dangerous drugs in count 1 were found and seized from the defendant, together with a bunch of keys and two mobile phones.

6.  Police officers brought the defendant back into the building and entered her flat on the first floor with the keys found on her.

7.  The Police found the dangerous drugs particularized in count 2 inside various plastic bags placed in a Hello Kitty box, a blue recycle bag, a brown recycle bag, and an orange “Hermes” box at different areas of the flat.  There were also 2 sealing machines, more resealable plastic bags, tapes, gloves, clamp and scissors.

8.  Under caution, the defendant said she was trafficking in the “powder” for a living.

9.  In the subsequent video recorded interview, the defendant said she rented the flat since 15 March at $8,500 per month.  She met a man “AK” when buying dangerous drugs, who introduced her to trafficking jobs.  All the dangerous drugs were supplied by AK, and were usually delivered by strangers to a certain place for the defendant to pick up and bring back to the flat.  The defendant would then weigh and re-package the drugs, send photos to AK, and then wait for AK’s instructions to deliver them.

10.  Messages from the Telegram application in the defendant’s mobile phone recorded the communications between AK and her.  They recorded that at 11:47am on the day of the arrest, AK told the defendant that AK had arranged for “drinking tea” (delivering the dangerous drugs to the defendant for storekeeping), and the defendant responded that she was on her way to “drink tea”.

11.  At 2:50pm, AK texted the defendant to deliver “14 big bags & 80 small bags of ketamine” and “26 big bags and 80 small bags of ‘ice’”, being the quantity of dangerous drugs seized on the defendant when she was intercepted by Police officers.

12.  At 3:36pm, the defendant told AK that she was on her way to “receive the goods”.

13.  At 4:19pm, the defendant sent photos of her weighing 3 bags of dangerous drugs.

14.  At 4:41pm, the defendant sent photos to AK showing many small bags of dangerous drugs and the wrapped box and bag that was later seized from her.  She also sent photos of the dangerous drugs still left in the flat.  

15.  The estimated street value of the dangerous drugs in count 1 and 2 as at the time of seizure were, respectively, $130,830 and $396,709 for the ketamine; and $271,312 and $133,413 for the ‘ice’.  Depending on how they are constituted, the cocaine in count 1 was either $93,321 in powder form or $127,861 in crack cocaine form.

PREVIOUS CONVICTIONS

16.  The defendant has two convictions for possession of dangerous drugs.  In 2008, she was put on probation for 12 months, and in 2016, she was remanded at the Drug Addiction Treatment Centre.  She had also been convicted for theft on two occasions in 2011.  

17.  Given the relatively minor nature of the convictions, and the lapse of time since the last conviction in 2016, I will not enhance her sentence based on her being a repeat offender.

BACKGROUND AND MITIGATION

18.  The defendant was born in mainland China and is 54 years old.  She was educated up to high school level.  She was married and lived with her husband and daughter, who was born in the mainland in 1997, and is now 26 and working as a beautician.  The defendant’s mother, who is in her 80s, suffers from hereditary coronary disease and resides alone in Chong Qing.  Given the anticipated length of her sentence, the defendant does not expect to be able to see her mother again.  She is grateful that her daughter was able to visit her grandmother immediately after the lifting of COVID travelling restrictions.

19.  The defendant’s husband passed away on 28 January 2024 from lung cancer, whilst she was in remand for this case.  He used to run a garment business from the 1980s up to 2000, when his cancer became so aggressive that he had to stop working.  The family had to rely on CSSA while the defendant took care of her husband full time.

20.  In her handwritten letter, the defendant told how her husband collapsed one day in 2005 from liver failure, how they had waited for a liver transplant for 10 plus years without success, and how she had eventually decided to commit the present offence to try to get some money to use to treat her husband’s worsening condition.  

21.  During her remand, she had found religion and will be enrolling in courses to improve herself.  Her daughter’s regular visits also provided her the much needed support.  

22.  The defendant’s daughter wrote to tell the court how she and her late father were devastated upon finding out about this case, but they had both forgiven her.  She is happy that the defendant has found religion and notices positive changes in her since. She is determined to continue to support the defendant and hopes for a lenient sentence. 

SENTENCE

23.  The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.  

APPLYING HERRY JANE YUSUPH

24.  In sentencing, I follow and apply the guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1], as read in conjunction with HKSAR v Lee Ming Ho[2].

Step 1: The applicable guideline tariff bands

Count 1

25.  For 482g of ‘ice’, the applicable guideline tariff band is that of “15 to 20 years”.

26.  For 215g of ketamine, the applicable guideline tariff band is that of “6 to 9 years”.

Count 2

27.  For 236.87g of ‘ice’, the applicable guideline tariff band is that of “11 to 15 years”.

28.  For 643.9g of ketamine, the applicable guideline tariff band is that of “12 to 14 years”.

29.  For 71.65g of cocaine, the applicable guideline tariff band is that of “8 to 12 years”.

AGGREGATED QUANTITY

30.  If sentencing upon the aggregate quantity of dangerous drugs in both counts, for 718.87g (482+236.87)  of ‘ice’, the applicable guideline tariff band is that of “20 to 23 years”; for 858.9g of ketamine, the applicable guideline tariff band is that of “12 to 14 years”, while the applicable guideline tariff band for 71.65g of cocaine remains that of “8 to 12 years”.

Step 2: The defendant’s role and culpability

31.  The defendant’s role is to pick up the drugs, store them in the flat, re-package them if necessary, and then follow instructions to have them delivered.  There is no evidence to suggest that she was involved in directly trafficking any of the dangerous drugs.  It would appear that she was acting as a courier and storekeeper for this sizeable drug dealing operation.

32.  I see no reason to deviate from an arithmetical approach when deciding on where within the guideline bands the starting points should lie.

Step 3: The relevant band within the guidelines

Count 1

33.  For 482g of ‘ice’, the starting point is 18 years.

34.  For 215g of ketamine, 8 years.  An equivalent quantity of ‘ice’ that would attract this sentence is 25g.  

Count 2

35.  For 236.87g of ‘ice’, 13 years 11 months.

36.  For 643.9g of ketamine, 12 years 3 months.  An equivalent quantity of ‘ice’ that would attract this sentence is 140g.  

37.  For 71.65g of cocaine, 8 years 7 months.  An equivalent quantity of ‘ice’ that would attract this sentence is 34g.  

THE RELEVANT BAND WITHIN THE GUIDELINES BASED ON THE AGGREGATE QUANTITY

38.  If sentencing upon the aggregate quantity of dangerous drugs in both counts:

(i)  For 718.87g (482+236.87)  of ‘ice’, 20 years 7 months.

(ii)  For 858.9g (215+643.9)  of ketamine, 13 years 4 months. An equivalent quantity of ‘ice’ that would attract this sentence is 202g.

(iii)  For 71.65g of cocaine, 8 years 7 months. An equivalent quantity of ‘ice’ that would attract this sentence is 34g.

39.  I adopt the combined approach when deciding on the aggregate starting point.

ABSURDITY TEST

40.  If all 1,649.42g of the drugs were the more potent ‘ice’ or cocaine, the starting point would be 23 years 6 months.  An aggregate starting point higher than this would be absurd.

CONVERSION TEST

41.  If all the dangerous drugs were converted into ‘ice’, the total quantity of the converted ‘ice’ would be 954.87g, which would have a converted starting point of 21 years 9 months.

RATIO TEST

42.  Respectively, the ‘ice’, ketamine and cocaine each makes up 43.58%, 52.07%, and 4.34% of the total 1,649.42g of narcotics.  By ratio, if all the drugs were ‘ice’ or ketamine or cocaine, the respective sentence based on the said percentage ratio would be 123, 103, and 12 months, with the total being 238 months, or 19 years and 10 months.

43.  Adopting a combined approach, and with the above test results in mind, I would adjust the sentence for the aggregate 718.87g of ‘ice’ upwards by 1 year and 2 months and adopt the aggregate starting point of 21 years and 9 months’(261 months)  imprisonment to account for the ketamine and cocaine in the two counts.

Step 4: Aggravating factors

44.  As confirmed by the Court of Appeal in Herry Jane Yusuph, the dealing in more than one type of dangerous drug has been established as an aggravating factor[3].

45.  For this aggravating factor, I will enhance the aggregate starting point by 9 months, taking it to 270 months, or 22 years and 6 months.

Step 5: Mitigating factors

46.  The only mitigating factor is the defendant’s timely guilty pleas.  The sentence after plea based on the enhanced aggregate starting point is, therefore, 15 years (180 months).

Step 6: Totality

47.  I have taken a step back and examined the aggregate total notional sentence after trial of 22 years and 6 months.  I find that it is a fair, just and balanced sentence in all the circumstances.  

FINAL SENTENCE

48.  The defendant is sentenced as follows:

Count 1

49.  18 years 5 months’ imprisonment starting point, enhanced by 9 months for the trafficking in two different types of drugs aggravating factor to 19 years and 2 months.  Discounted by one-third for the guilty plea to 12 years 9 months (153 months).  

Count 2

50.  16 years 10 months’ imprisonment starting point, enhanced by 9 months for trafficking in multiple drugs to 17 years 7 months.  Discounted by one-third for the guilty plea to 11 years 8 months (140 months).  

TOTAL SENTENCE

51.  I order 2 years and 3 months of the sentence in count 2 to be served consecutively to the sentence in count 1, the balance to be served concurrently.  The total final sentence for the two counts after plea is 15 years’ (180 months)  imprisonment.