HKSAR v. LEE NGO HIN

HCCC 151/2022

[2023] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 151 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 58.16 grammes of a mixture containing 47.23 grammes of heroin hydrochloride.

The defendant pleaded guilty to this offence at the first opportunity in the Magistracy and was committed to the Court of First Instance for sentence.

The guilty plea and the facts which the defendant admitted at committal have been confirmed by him before me today.

Facts of the case

The Summary of Facts reveals that at around 10:49 am on 17 April 2021, police officers spotted the defendant at No. 105 How Ming Street walking towards them, holding a black recycle bag. As soon as the defendant noticed the uniformed officers, he crossed the road to the other side of the road and walked towards No. 106 How Ming Street. A plainclothes officer then tailed him. The defendant crossed the road again and returned to outside No. 105 How Ming Street. Officers then revealed police identity and intercepted the defendant.

The CCTV footage of the arrest location captured the defendant holding the bag and walked in a hurried manner when he saw the officers.

Upon interception, the defendant immediately put down the black recycle bag, it is searched by the police, revealed the following items in the bag:

(1)  a plastic bag containing another plastic bag with 27.8 grammes of a mixture containing 22.6 grammes of heroin hydrochloride;

(2)  a plastic bag containing 26.5 grammes of a mixture containing 21.5 grammes of heroin hydrochloride;

(3)  a plastic box containing 43 packets (with plastic wrappings)  containing a total of 3.85 grammes of a mixture containing 3.13 grammes of heroin hydrochloride;

(4)  a few pieces of tissue paper;

(5)  a lighter;

(6)  a yellow plastic bag containing a transparent resealable bag containing a pile of white plastic sheets;

(7)  a pile of yellow papers marked “Fat Hin’s store” and some dates and numbers;

(8)  a white notebook marked containing dates and numbers;

(9)  a pink notebook containing words stating “each person each day two pieces, one week one and a half stroke”;

(10)  a red metal box containing a hotel check-in receipt of “ind Hotel”, bearing the defendant’s signature; a number of transparent resealable plastic bags containing a pile of plastic sheets; and over 200 empty transparent resealable plastic bags;

(11)  a roll of plastic bags;

(12)  a box of blades;

(13)  a clamp;

(14)  a weight and a black electronic weighing scale;

(15)  a black box containing three pairs of scissors; two cutters; two metal spoons containing a total of 0.01 gramme of a mixture containing heroin;

an electronic weighing scale containing traces of

a mixture containing heroin; and four clips.

In April 2021, the estimated street value of the drug was approximately HK$62,696.

Upon arrest for the offence of trafficking in a dangerous drug, the defendant said under caution that the stuff were not his, and he had nothing to say.

In a later cautioned interview, the defendant said he just passed by the location without any purpose and that the heroin did not belong to him and he could not provide any explanation as to the items seized.

The Summary of Facts concluded with an admission by the defendant that at the material time, he unlawfully trafficked in the heroin hydrochloride that was seized.

The Defendant’s Background

The defendant’s antecedents statements reveals that he was born in Hong Kong on 11 February 1994 and is now aged 29. He was educated up to Form 6 and has previously worked as a construction worker.

The defendant has three previous criminal records. Two are drug-related offences. On 16 January 2015, he was convicted of possession of equipment fit and intended for smoking/injecting/inhaling dangerous drug. He was placed on probation for 12 months. On 14 June 2016, he was ordered to be detained in a Drug Addiction Treatment Centre for the offence of possession of dangerous drugs. He was released from the Drug Addiction Treatment Centre on 16 November 2016.

In mitigation, Mr Lee informs me that the defendant had worked as a construction worker for about 10 years on a monthly income of HK$17,000. He also worked as a part-time driver assistant, earning about HK$7,000 to HK$8,000 a month. But he became unemployed since late 2020 due to the outbreak of COVID-19 and could only rely on his part-time job for living. Mr Lee also told me that the defendant became a father in January 2016 and has a 7-year-old son living with his ex-wife. I am informed by the defence counsel that the defendant used to financially contribute a sum of about HK$2,000 to HK$3,000 each month to his son for living.

I have also read the letter written to the court by the defendant who told me that he had got rid of his drug abuse in November 2016 and worked hard since then until his wife divorced him in 2018. The defendant said he relapsed into drugs abuse. In order to earn money for living and to help his friend, he agreed to be a carrier for the drugs in order to earn quick money.

Counsel urged this court to accept the defendant’s role as a courier. He said that the defendant is remorseful and has pleaded guilty at the first available opportunity.

Sentencing Principles and Tariffs

In sentencing, I shall follow the six step approach enunciated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

It is well established that trafficking in a dangerous drug is a very serious offence. In Herry Jane Yusuph, Macrae VP reaffirmed that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence, and punishment.

The first step is to assess the gravity of the offence (see Herry Jane Yusuph at paragraph 57).

The count in the indictment concerns only heroin hydrochloride. The relevant sentencing guideline decision for heroin is Rv Lau Tak Ming [1990] 2 HKLR 370 (as mortified by HKSAR v Abdallah [2009] 2 HKLRD 437). The relevant sentencing band for 47.23 grammes of heroin is 5 to 8 years’ imprisonment for amounts between 10 to 50 grammes of heroin.

The second step is to assess the defendant’s role and culpability based upon the evidence. Mr Lee submitted the role of the defendant was that of a courier that is one who is delivering, distributing or conveying the drugs in question for a dealer.

The defendant did not claim self-consumption. Defence counsel further submits that the drugs were not for the defendant’s consumption and the reason for committing the present offence was due to financial strain, and that the defendant was vulnerable to his friend’s tempting offer to deliver the black bag to an unknown person as a courier for a reward of $6,000. He now admits that all quantity for drugs is for trafficking.

Based on the evidence before the court, I accept that the defendant was engaged in the job of carrying dangerous drugs for others for a monetary reward and I assess his culpability as trafficker at the same level as a courier.

The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it might, in appropriate circumstances, be necessary to go outside that band, whether above or below, given the circumstances of the commission of the offence and role of the defendant.

The assessment made in the second step is relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed the sentencing guideline for trafficking in dangerous drugs are based upon the role of the defendant as a courier or storekeeper, who are recognised to be at the lowest rank in the trafficking hierarchy.

Since I found the defendant’s role as a courier, applying the relevant tariff, the arithmetical calculated weight- based starting point for 47.23 grammes of heroin is one of 7 years and 9 months.

Taking into account the role and culpability of the defendant, I do not find there to be any justification for departing from that starting point.

The fourth step requires me to consider whether there are at present or whether there are present any aggravating factors which might require me to enhance the starting point.

The defendant appears before me as a person who has previous convictions but they all relate to a period when he was much younger. He was placed on probation in early 2015 and was later sent to Drug Addiction Treatment Centre in June 2016 presumably to assist him to get through a difficult period in his life and it appears at one point he has been successful in achieving his rehabilitation. I shall not regard his criminal record as an aggravating factor.

There are no other matters that could be regarded as aggravating factors and so the starting point of 7 years and 9 months’ imprisonment becomes the notional sentence after trial.

Fifth, I am required to have due regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for very little, unless they are exceptional.

There being no exceptional mitigation circumstances concerning the defendant in this case to support a discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage. I will give the full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. I reduce the overall starting point to a term of 5 years and 2 months’ imprisonment.

The sixth and final step of the sentencing process is to stand back and look at the overall sentence passed in order to ensure it is a fair, just, and balanced sentence in all the circumstances of the offence and the offender.

Having regard to all circumstances of the case, including the circumstances of this offence and the offender, I am of the view that ultimate sentence of 5 years and 2 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.

The defendant has a very supportive family. His mother and his family are all here to give him support. He would need all the support and help he could to reintegrate into society after his release.

The final sentence I would impose on the defendant is one of 5 years and 2 months’ imprisonment.