The defendant was committed for trial on 1 April 2019 on one count of trafficking in 197 grammes of a solid containing 133 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The trial was scheduled to commence on 24 June 2020 with eight days reserved. However, on 16 June 2020, counsel for the defendant wrote to the court, indicating a plea. Therefore I directed that the case be listed for plea and sentence. Today, the defendant pleads guilty to the charge and admits the Summary of Facts prepared by the prosecution.
Summary of Facts
Shortly stated, at around 3.25 am on 6 March 2018, a taxi was stopped at a police roadblock on Sung Wong Toi Road for inspection. The defendant and a male called Sumon were the two passengers on board. The defendant was sitting right behind the taxi driver and Sumon was sitting next to the defendant.
At the request of the police officer, Sumon produced a Form 8 as his identification proof whilst the defendant said he had lost his. The two males were then asked to alight for body search. As the defendant moved from his seat, a police officer saw a box beside the defendant’s right leg. Inside that box, the police officers found a transparent plastic bag in which there was a resealable plastic bag containing the cocaine which was the subject matter of the charge. The defendant was therefore arrested and under caution he made no response.
In a subsequent cautioned interview the defendant said, among other things, that he had only met Sumon once or twice before and at the material time, he was only travelling with Sumon and he did not know where the intended destination was. He said the “stuff” belonged to Sumon.
According to the Summary of Facts, the street value of the cocaine in this case was HK$198,773 and the daily dosage of a typical chronic cocaine user is between 0.2 to 0.5 grammes.
The defendant now admits that he unlawfully trafficked in the aforesaid cocaine at the material time.
Antecedent
The defendant is an Indian and is now aged 31. He came to Hong Kong on 19 August 2011 as a visitor. However, he overstayed. On 19 November 2011, he made a non-refoulement claim which was rejected by the immigration on 14 February 2012. He had been released on the strength of a Form 8 recognisance since 30 December 2011 until he was arrested for the present offence on 6 March 2018.
The defendant has a previous conviction of trafficking in November 2011 and was sentenced on that occasion to 3 months’ imprisonment. In view of the age of that conviction, I am not going to treat it as an aggravating factor.
Sentence
It is now well-established that, the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and calculated mathematically and that the mere fact that the defendant had only acted as a courier of the dangerous drug is not a good reason for departing from that mathematical approach (see HKSAR v Kilima Abubakar Abbas).
The sentencing tariff for trafficking in cocaine follows that of trafficking in heroin (see Attorney General v Pedro Nel Rojas). The applicable tariff is the one laid down in R v Lau Tak Ming, as amended by HKSAR v Abdallah. According to Abdallah, trafficking in 50 to 200 grammes of cocaine narcotics carries with it an imprisonment term of 8 to 12 years.
In the present case, the quantity of the cocaine narcotic concerned is 133 grammes. I can see no good reasons to depart from the mathematical starting point. Therefore, applying the mathematical approach, the starting point of the sentence is 123 months’ imprisonment.
I take into account that the defendant was at the time of the offence a non-refoulement claimant staying in Hong Kong on the strength of a Form 8. In HKSAR v Mahabul Alam Khan, the Court of Appeal reiterated the principle articulated in Shah Syed Arif that if a non‑refoulement claimant who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities engage in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence. Guided by the above cases, I enhance the sentence of the defendant by 12 months. This brings the sentence of the defendant up to 135 months’ imprisonment.
Mr Laskey has said all that can be said for the defendant in mitigation. However, apart from the defendant’s plea, there is little in his personal or family background that can afford him any further reduction in sentence. The defendant’s first indication of a guilty plea is not timely but was made after committal and shortly before the trial was to commence. Based on HKSAR v Ngo Van Nam, I gave the defendant a 20 per cent discount for his plea which reduces his sentence to 108 months.
Based on the above, the defendant is sentenced to 108 months’ imprisonment.