The accused was intercepted and a search was conducted. Police found a bag carried by the accused which contained:
(1) Seven plastic bags containing a total of 242 plastic bags containing 49.1 grammes of a solid containing 35.1 grammes of cocaine; and
(2) $4,600-odd in cash and a mobile phone and some keys.
The accused was arrested for trafficking in dangerous drugs found as he proceeded in Sau Mau Ping Estate. Under caution, the accused said that he was delivering the cocaine to a place in Tsim Sha Tsui for a reward on behalf of a person he named as Ah Kit.
Armed with a search warrant and using keys found on the accused to gain entry, the police entered a room in Sau Fai House. A search of the room was found on a table in the living room a bag containing the following items was found:
(1) One plastic bag containing two plastic bags containing a total of 14.8 grammes of a solid containing 10.7 grammes of cocaine; and
(2) one plastic bag containing six plastic bags containing a total of 3.27 grammes of a solid containing 2.81 grammes of ketamine.
On the same table, there was a nylon bag containing some transparent resealable plastic bags, a box of gloves and an electronic scale.
The accused was arrested for trafficking in dangerous drugs in the room in Sau Fai House and admitted that the cocaine found at the room had been collected together with the cocaine found when he was proceeding in Sau Mau Ping Estate and the cocaine in the flat was for packing.
The accused submitted to a video-recorded interview under caution. The essence of what he told police is that he had been unemployed and had been offered money by Ah Kit to package the cocaine into small bags and deliver them to a pub in Tsim Sha Tsui. He had received the cocaine the day before and had taken it to his home, packaged part of it and retained another part for future packaging. He intended to take the cocaine to the pub in Tsim Sha Tsui pursuant to his agreement with Ah Kit. He admitted that the scale and plastic bags were there for the purpose of packaging.
The accused also told the police that the cash found on him was his savings from previous employment.
Following the arrest of the accused, he was taken before a magistrate and charged with:
(1) Trafficking in a dangerous drug containing namely 49.1 grammes of a solid containing 35.1 grammes of cocaine on 2 June 2018 outside Sau Fai House in Sai Mau Ping;
(2) trafficking in a dangerous drug, namely, 14.8 grammes of a solid containing 10.7 grammes of cocaine on 2 June 2018 inside a room in Sau Fai House; and
(3) possession of a dangerous drug, namely 3.27 grammes of a solid containing 2.8 grammes of ketamine on 2 June 2018 inside the room at Sau Fai House.
The matter proceeded before the Magistrates’ Court until 18 March 2019 when a magistrate conducting committal proceedings received a plea of guilty for the foregoing charges and facts were admitted and the matter was committed for sentence to this court. By the plea of guilty and the admission of the facts, it is plain that the accused was trafficking in the cocaine particularised in the 1st and 2nd charges and was in possession of the ketamine particularised in the 3rd charge.
Value of drugs:
It is agreed drugs subject to the 1st and 2nd charge is just over $80,000. The ketamine which is the subject of 3rd charge was valued at about $1,500.
Background and mitigation:
In this case, I called for a background report to be prepared by a probation officer because some of the mitigation advanced when this matter first came before the court suggested further inquiries might be made. I have now received a very careful and thorough background report which is of substantial assistance.
The accused is 29 years old and lives with his mother in a housing estate in Tsz Wan Shan. His father, who is now 78, lives in a residential care home for the elderly. The accused has a sister who is married with a daughter and lives in Tsuen Wan. The accused was born in Shenzhen and the family which originates from the mainland moved to Hong Kong on one-way permit in 1997. The accused received education up to Form 3. He appears not to have performed well in his studies and this was the motivation for leaving school early. There is at least a hint in the background report that his father suffered from mental problems. The father divorced from the mother in 2009. However, it appears that perhaps the most singular event in this man’s life was the suicide of his elder brother. That appears to have been a salutary event and it appears that although the accused who had, on his own admission, drifted through life until that event undertook to shoulder responsibility for the family’s upkeep. However, at least part of his mode of solving that problem was in this case, drug trafficking.
The mother of the accused suffers from ill health. She has mobility issues. A surgical procedure for a knee replacement is scheduled for 2020. The background report reveals her anxiety about the accused and her obvious need for his support. I note her presence and her sister, that is the aunt of the accused, in court today to provide support.
The accused has a criminal record starting in 2008. That started with charges of possession of a dangerous drug and trafficking in a dangerous drug in 2008. Further convictions of possession of dangerous drugs appear in 2013 and 2015. Charges of theft for which he received imprisonment also appear in proceedings in 2013.
I have received two mitigation letters, one is from the accused himself in which he takes responsibility for his conduct. That the accused takes responsibility for his conduct is perhaps at minimum a faint light in the darkness. The second is from Deacon Peter Wong who is a minister of religion at the Lai Chi Kok Reception Centre. In his letter, he tells of the fact that the accused is now receiving religious instruction.
Sentencing principles - sentencing for trafficking in cocaine:
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. The drug has terrible consequences for the individual. It is addictive and ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to this drug. There are consequences - sometimes serious ones - for the families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that a maximum sentence is life imprisonment and a fine of $5 million. The view of the community is also reflected by the courts in the nature of sentences and the levels traditionally imposed for drug trafficking - including trafficking in cocaine. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drug, the subject of the charge, in this case.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines provide for a sentence for quantities of between 10 grammes and 50 grammes of cocaine to attract a sentence if an accused had been convicted after trial of between 5 years and 8 years’ imprisonment.
There are no specific guidelines for the possession of this quantity of ketamine.
Discount for plea of guilty:
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.
Application of sentencing principles:
The family background of this man provides perhaps some insight into the reasons why he has resorted to trafficking. It is manifest he has not heeded the warnings that more recent sentences of imprisonment ought to have given to him. There is no doubt whatever in my mind that the accused has had a difficult upbringing characterised by what appears to be family violence which almost certainly arose out of mental problems suffered by his father. I do not accept for one minute the assertion made by the accused to the probation officer who compiled the background report that the accused did not appreciate the severe sentences which are meted out in Hong Kong for drug trafficking of this kind to which the accused has pleaded guilty.
The saving grace is that he has admitted his responsibility and perhaps now the time has come at age 29 for the accused to take responsibility for the balance of his life. There is no question but that the accused must go to prison. The only hope is that the accused will realise as he reflects on his life in prison that getting a job and starting a more meaningful and stable life when he gets out of prison will be substantially harder than the challenge faced by him prior to his arrest, charge and conviction for these offences. It is earnestly hoped that the accused will start to get his act together in prison and take advantage of educational opportunities afforded to prisoners by the Commissioner of Correctional Services. When the accused comes out of prison, he will need every piece of equipment he can possibly to get his life in order. The choice is his.
Although there are two separate counts of drug trafficking to which the accused has pleaded guilty and that might justify consecutive sentences because there are two clear and distinct acts of trafficking. That would result in a total which would be unduly harsh and although that would perhaps be reflective of society’s desire to deter drug trafficking and particularly trafficking in cocaine, but viewed as separate acts of trafficking, the starting point for Count 1 and Count 2 would be 83 months and 61 months respectively. I think a more realistic approach is that the conduct reflected in the charges are simply incidents of a continuous act of trafficking and I think a sentence based on the aggregate quantities of cocaine and to impose sentences for the two counts of trafficking which would reflect that reality. If this was viewed as one act of trafficking and one quantity of cocaine, a starting point of 92 months, that is 7 years and 8 months, would be indicated. After an appropriate discount, that produces a sentence of imprisonment of 5 years and 1 month.
On the two charges of cocaine trafficking after discount to reflect the timely plea of guilty, I intend to impose a sentence of 4 years and 7 months on Count 1 and 3 years and 4 months on Count 2. I order that these sentences be served partly consecutively and partly concurrently and that 1 year and 6 months of the sentence on Count 2 be served consecutively to the sentence imposed on Count 1 making the overall sentence for the trafficking charges in Count 1 and Count 2 to be 6 years and 1 month.
On the charge of possession of ketamine, I fix a starting point of 6 months’ imprisonment. I am sure there is no realistic latent risk and that forms no part of this sentence. After a discount for the plea of guilty, that would produce a sentence of 4 months’ imprisonment. I order that the sentence be served partly consecutively and partly concurrently for the sentence on Count 2 and that 1 month of the sentence on Count 3 be served consecutively to Count 2. That produces an overall sentence of 6 years and 2 months and that is the order of the court.