The defendant tendered a plea of guilty to the charge before the magistrate at the committal stage and was committed to the Court of First Instance for sentence.
He came before me on 22 November 2019 for sentence. Having confirmed his plea and admission to the Summary of Facts as read out to him at the committal stage, the matter was adjourned twice until today at the request of the parties for non-prejudicial statements to be taken from the accused.
Facts of the Case
The facts as agreed by the defendant are as follows: At around 8:47 pm of 26 September 2018, police officers who were conducting an anti-dangerous-drugs operation spotted a taxi bearing registration number KL255 parked at Bute Street in Mongkok. The accused was sitting at the driver seat of the taxi at the time. The police officers approached and intercepted him, who tried to struggle but was subdued.
A search was then conducted of the taxi. Under the driver seat, the police found a black plastic bag containing eight plastic bags containing the subject dangerous drugs as particularized in the charge. The accused was found to have in his possession a mobile phone and $1,950 cash.
The accused was arrested for trafficking in dangerous drugs and under caution, he told the police that his daughter would be born soon, that he needed money and he thus helped someone to deliver the drugs.
In a subsequent video-recorded interview, the accused exercised his right of silence and refused to answer questions asked of him about the matter.
At the time of the offence, the estimated retail value of the cocaine seized was $274,658.
The Accused’s Background
The accused is 30 years old and was educated to Form 5 in secondary school. He has a clear criminal record.
He is single but he has a girlfriend who had given birth to a daughter with him as the natural father in January 2019.
The accused was raised in a broken family. His parents separated when he was small. He had lost contact with his father since then and his mother had even changed his surname using hers to show her total cut-off from the father. Nonetheless, the accused has maintained a very distant relationship with his mother who had left the accused to live with her own boyfriend and had given birth to a young boy now aged 10 - the accused’s half-brother. Before the offence, the accused was living with his maternal grandmother who is 73 years old, supporting and taking care of her.
The accused worked as a taxi driver at the time of the arrest earning about 13,000 to 15,000 per month. Prior to that job, he earned his living by running a place for people to play snooker. This was where he came to know the person who he said had instructed him to deliver the drugs, the subject matter of the charge. Because of the snooker business, he owed money to the bank which he failed to repay in full.
The accused claimed to be a drug user, and had the habit of taking cocaine at a dosage of about 1 gramme each day. But he frankly admits that he had all the drugs found on him in this case for trafficking purpose, and none for self‑consumption.
Mitigation
In mitigation, it was said on behalf of the accused that he was first introduced to drugs by one of his “snooker business” customers nicknamed “Ball Hei”. He started consuming cocaine occasionally in around early 2017. He became addicted to it. Ball Hei would provide cocaine to the accused free of charge and would from time to time lend him money from a thousand to $1,500.
A few days before the offence, when the accused was chatting with Ball Hei, he related to Ball Hei that his girlfriend was pregnant and he was worried about family finance. Ball Hei then suggested to the accused to help collect and deliver drugs to earn some quick money, promising to reward him for $4,000. That was how he got himself into being caught red‑handed and incarcerated for the present offence.
He felt very remorseful and extremely regretful for not being able to witness the birth of his daughter. Furthermore, I am told that his girlfriend got angry with him and was apparently distancing herself from him, having only gone to visit him with their daughter twice during his remand in custody. And ironically for the accused, I am further told that the girlfriend has decided to change their daughter’s surname to hers and has taken steps doing that by arranging for a deed poll to be prepared. It is said that this has dealt a severe blow to the accused and has somehow strengthened his determination to reform whilst, as he will be, imprisoned.
The court was provided with a letter handwritten by the accused himself, as well as two mitigation letters written by his former colleagues in the taxi industry, pleading for leniency on his behalf. The two colleagues both attest that the accused was courteous at work and was a filial and responsible person taking care of his grandmother. The defendant’s own letter is more substantial and through it he has conveyed to me his remorse and determination to make amends and turn over a new leaf.
It is hoped that the accused has genuinely learnt a lesson and would be able to do as he promised. In this regard, the court is glad to see that the accused’s grandmother, his mother and a lady friend of his are today in court to show him support. And I am told that but for the public health situation, the accused’s girlfriend would have brought the daughter along to court today to give him the support as well. It is hoped that the accused would treasure those support from his beloved family members.
Sentencing Principles and Tariffs
The offence of trafficking in dangerous drug is very serious and is punishable by a maximum sentence of life imprisonment and a fine of HK$5 million. The courts of Hong Kong have consistently taken a serious view on such offences - particularly in relation to highly addictive and potent hard drugs such as cocaine. This is reflected in the nature of the sentences and the levels of those sentences traditionally imposed for drug-trafficking offence. The policy underlying the approach to sentencing drug-trafficking offences is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs including the drugs, the subject of the charge.
The tariffs that is applicable to trafficking in cocaine is derived from the Court of Appeal’s decision in R v Lau Tak Ming & Others [1990] 2 HKLR 370 - the tariffs case for heroin - which is confirmed to be also applicable to cocaine. See Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 and HKSAR v Abdallah [2009] 2 HKLRD 437.
According to the applicable sentencing tariffs, quantities between 50 and 200 grammes of cocaine would attract a starting point of sentence of between 8 and 12 years.
And as the Court of Appeal held in Lau Tak Ming, within the suggested bands, factors which the sentencing judge may properly take into account are as follows:
(i) The profit which, because of the adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from the trafficking in the quantities of drugs involved;
(ii) The number of packets;
(iii) The type of mixture containing the narcotics;
(iv) The degree of involvement of the offender; and
(v) His previous history of narcotic offences and matters of mitigations which may have been advanced on his behalf.
The Court of Appeal also added that “if there exists a clear record or a plea, then the sentencing Court may take one or both such factors, as the case may be, into account when arriving at what it considers to be the proper discount.” That said, whether and if yes, to what extent those factors do avail the accused must be set against the gravity of the offence in question - especially where there was a large quantity of drugs seized.
Application of the Sentencing Principles
On a strict mathematical approach, given the quantity of cocaine seized in this case, namely 137 grammes, the appropriate starting point is one of 10 years 4 months.
Taking into account the various factors set out in Lau Tak Ming as I mentioned above, including that there were eight plastic bags of drugs involved, that the accused’s involvement as a courier, as well as his clear record and personal/family circumstances, and matters that I heard this morning, I am prepared to reduce the starting point to one of 10 years.
The accused pleaded guilty at committal stage. He is therefore entitled to the full one-third discount, reducing the sentence to one of 80 months, namely 6 years and 8 months’ imprisonment. See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, para.211.
Further Mitigating Factors: Assistance to Authorities
As mentioned above, the accused has sought to render assistance to the authorities by providing information to the police. As a matter of principle, I should deal with this aspect of the mitigation as well. I am informed that a request was made on the accused’s behalf to the police on 20 November 2019 - two days before the case was first brought before me on 22 November 2019, offering to give non‑prejudicial statements. The matter was thus adjourned twice at the request of parties and a total of three non‑prejudicial statements have since been taken from the accused by the police.
In accordance with the principles set out by the Court of Appeal in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, and through the helpful assistance of Miss Wong for the prosecution, the court is provided with a signed report from the investigating officer and a certification by a senior officer, together with a copy of the three non‑prejudicial statements, which set out all relevant information on this issue to enable me, as the sentencing judge, to properly assess the defendant’s claim and determine whether any discount should be given - namely, and the key question is - whether the alleged information or assistance said to have been provided by the accused was “of practical use” or not.
Suffice it to say that upon a careful assessment of the information provided by the accused in the three non‑prejudicial statements and the further investigation conducted by the police, it is the prosecution’s conclusion that “the information provided by the defendant did not lead to any fruitful result or assistance to the authorities”,and is thus not “of practical use” in the sense described by the Court of Appeal in Yeung Hoi Ting, or “of any actual or potential assistance” as described by the court in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 (per Macrae VP at paragraph 83) which is a case referred to at paragraph 88 of Yeung Hoi Ting.
I have duly considered the matter and as a matter of principle find no reason to question the prosecution’s conclusion and assessment of the usefulness or otherwise of the alleged assistance given by the accused. As the Court of Appeal held in Yeung Hoi Ting at paragraphs 87 and 100 (8):
“There should normally be no question of evidence being given or an issued tried, if the defendant disagrees with what has been stated in the information. It is not the function of the sentencing court to question the relevant officer as to the accuracy of the information supplied.”
As a matter of principle, I am of the view that such an approach is also applicable to the assessment by the law enforcement agency of the usefulness or otherwise of the alleged assistance. In the circumstances, no further discount would be given to the accused on account of his alleged assistance to the authorities on the principles as stated in Yeung Hoi Ting.
The final sentence that would be imposed on the defendant is thus one of 6 years 8 months’ imprisonment.