The defendant pleaded guilty to one count of trafficking in a dangerous drug, namely, 1,000 grammes of a solid containing 772 grammes of a narcotic commonly referred to as ‘Ecstasy’. That is Count 1. The offence date was particularised as 14 February 2019 and the particulars of the offence stated that the defendant trafficked in this drug together with a person called Lee Ka-on whom I will refer to as “Lee”, and other persons unknown. And one count of conspiring with the same Lee to traffic in a dangerous drug, namely, cocaine, Count 2. The date of the conspiracy was particularised as between an unknown date in October 2018 and 14 February 2019.
The facts as admitted
The facts as admitted by the defendant may be summarised as follows.
At around 4.35 pm on 14 February 2019, the defendant picked up a brown paper box (“the paper box”) under a tree at Oi Yin Street, Shau Kei Wan, and attempted to leave in a taxi. The defendant was intercepted before he could board the taxi. The paper box was subsequently found to contain 772 grammes of ecstasy. This is the subject of Count 1.
A house search was later conducted at the defendant’s residence in Aberdeen. 41 plastic bags containing a total of 9.09 grammes of a solid containing 7.43 grammes of cocaine were found in the defendant’s room. This specific quantity of cocaine is not expressly the subject of any charge before this court.
When interviewed under caution, the defendant admitted, inter alia, that:
(1) He worked for Lee since October 2018 to deliver cocaine.
(2) Every day at about 1.00 am to 2.00 am, Lee would call and instruct him to collect cocaine from a location in Causeway Bay.
(3) He would take about 40 packets of cocaine every time and deliver them from 3.00 pm to 5.00 am every day as instructed by Lee. He worked Monday to Sunday.
(4) Each packet was said to weigh about one gramme.
(5) The cocaine found at the defendant’s home on 14 February 2019 was collected from the same Causeway Bay address under Lee’s instructions at around 1.00 am on 13 February 2019.
(6) He would receive around $50 as reward for each packet delivered and earned about $15,000 per month for the job.
In respect of the paper box containing the ecstasy, the subject of Count 1, the defendant was instructed by Lee to take the drugs contained in the paper box to a private car parked in a car park in Chong Fu Road and place it inside the car. The defendant thought that the paper box contained cocaine.
The street value of the ecstasy and cocaine seized were about $34,860 and $8,617, respectively.
The defendant’s circumstances and submissions in mitigation
The defendant is currently 21 years old with no previous criminal convictions. He was educated up to Form 5 and has studied for a Diploma in Building Services Engineering at the Vocational Training Council but did not complete it. At the time of the offence, the defendant worked as a part-time warehouse worker earning around $5,000 to $6,000 per month. The defendant’s father is currently 53 years old and was diagnosed with a brain tumour and surgery was performed in December 2017.
It was submitted in mitigation that the defendant committed the present offences because he was under enormous financial pressure at the time as a result of debts incurred by his mother in order to pay for his father’s medical expenses. The defendant’s father had been unemployed since his illness and the economic burden of the family rested on the defendant and his mother.
This court has been supplied with letters written by the defendant himself, the defendant’s parents and from the prison chaplain. I have taken into account the matters referred to in those letters when deciding on the appropriate sentence for the defendant.
The starting point for Count 1
Count 1 concerned the trafficking of ecstasy with a narcotic content of 772 grammes. There is no reason to depart from the tariff as laid down in SJ v Hii Siew Cheng, [2009] 1 HKLRD 1, in this case. The applicable starting point for narcotic content between 600 grammes and 1,000 grammes is between 12 and 14 years’ imprisonment. In the circumstances of the present case, I find that the appropriate starting point is one of 12 years 10 months’ imprisonment.
Count 2 - the applicable principles
Count 2 concerns a conspiracy to traffic in an unspecified amount of cocaine between October 2018 and 14 February 2019. As stated by the Court of Appeal in the case of HKSAR v Chan Kam Loi, CACC 410/2012, at paragraphs 100 to 102, and I quote paragraph 100:
“Before any court can sentence an offender, it has to make an assessment of the gravity of the offence he has committed. In drug trafficking offences, the starting point for that to be done is by recourse to the quantity of drugs being trafficked. In most cases, certainly in respect of substantive offences, that will not create any problem simply because the charge will reflect the quantity of drugs that has been seized by the law enforcement agency. But, in respect of inchoate offences, it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity, but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.”
Paragraph 101:
“Thus, even in respect of inchoate offences, the natural course is for the court to analyse the evidence to see whether it allows the court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.”
Paragraph 102:
“The evidence may not always allow of precise quantification, but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the court to have recourse to the quantity-based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the court to impose a just sentence.”
The Court of Appeal also made similar remarks in the case of HKSAR v Tsang Ka Wing, [2017] 5 HKLRD 799, at paragraph 33. The sentencing guidelines provided by the Court of Appeal in respect of trafficking in cocaine are based upon the quantity of the drugs being trafficked. In order to arrive at a proper starting point, this court would need to analyse the evidence to see whether inferences can be properly drawn as to the quantity of the cocaine which the defendant had agreed to traffic over the period of the conspiracy. Bearing in mind that unless the facts which give rise to the inferences are clear-cut, this court must lean in favour of the defendant.
Mr Michael Cheung, counsel for the defendant, initially invited this court to sentence the defendant on Count 2 solely on the basis of the 7.43 grammes of cocaine seized from the defendant’s room on 14 February 2019, that is the day of his arrest, and ignore the defendant’s admissions under caution detailing the approximate amount of drugs he dealt with over the period of the conspiracy.
This court does not consider that approach to be consistent with the principles laid out by the Court of Appeal in the judgments already mentioned when a defendant’s admissions under caution provide sufficient basis for calculating the approximate amount of cocaine trafficked over the period of the conspiracy.
Upon taking further instructions, Mr Cheung informed the court that the defendant wished to testify in order to, amongst other matters, clarify some of the answers he gave to the police under caution. The matter was adjourned to 13 August 2020 for the conduct of a Newton hearing.
The Newton hearing - the evidence
The parties agreed additional Admitted Facts for the purposes of producing the defendant’s two video-recorded interviews under caution. The Admitted Facts were marked as Exhibit P3. The disc containing the recording of the first video-recorded interview conducted between 0055 hours and 0124 hours on 15 February 2019 was produced as Exhibit P1, its Chinese transcript P1A, and English translation P1B. The second video-recorded interview conducted between 1901 hours and 1925 hours on 15 February 2019 was produced as Exhibit P2, its Chinese transcript P2A, and English translation P2B.
The defendant testified in a Newton hearing and called no other witness. In terms of the amount of cocaine the defendant dealt with over the course of the conspiracy the defendant stated in evidence-in-chief to the effect that:
(1) On the days on which the defendant delivered drugs for Lee, he would collect around four to five packets of cocaine from 17th Floor, Allways Centre in Causeway Bay, and then distribute them according to Lee’s instructions.
(2) From around the end of October 2018, the defendant would work around three to four days a week, but he did not work every week.
(3) Each packet of cocaine would be sold to customers at $260 or $300 per packet.
(4) For each packet sold at $260, the defendant’s remuneration was $50 per packet. For each packet sold at $300 (the defendant said he was able to charge new customers this higher sale price), the defendant’s remuneration was $100 for that. For every five packets delivered, the defendant would be able to sell around two of them at $300 each (meaning that the defendant would earn $100 on each of these packets) and the remaining three at $260 each (meaning that the defendant’s remuneration would be $50 for these sales).
(5) He did not know the weight of each packet as he was not the one responsible for packaging the drugs.
(6) After the defendant had delivered the drugs to the customers and collected the purchase price from them, he would deliver all of the proceeds of sale either to Lee personally at Sau Fung House in Chai Wan or back to the Allways Centre address where he would hand over the proceeds to someone else.
(7) The defendant did not deliver drugs over holidays which would include Christmas 2018 and Lunar New Year 2019.
(8) The defendant was ill from around 25 January 2019. He went to see a doctor at St Paul’s Hospital on 26 January 2019 where he was diagnosed with an upper respiratory tract infection. The statement of account from St Paul’s Hospital dated 26 January 2019 was produced and marked Exhibit D1. As a result of the illness, the defendant did not work for approximately two weeks.
(9) The defendant’s approximate monthly remuneration from delivering the drugs were:
(a) In November 2018, about $15,000.
(b) In December 2018, about $8,000 to $9,000.
(c) In January 2019, about $8,000.
The defendant’s attention was also drawn in-chief to various parts of the transcript of the two video-recorded interviews, Exhibit P1A and Exhibit P2A where his answers were inconsistent with the evidence the defendant gave in court.
In summary, the defendant’s explanations for the inconsistencies were that:
(1) The defendant had never been arrested before, so he was frightened and confused.
(2) He was worried that his parents would be arrested by the police also. Therefore, he claimed to the police officers that he delivered 40 packets of cocaine every day, the number being taken from the amount of packets of cocaine that were seized from his room. The defendant said that he did not want the police to investigate further.
(3) Lee had previously told the defendant to bear all the responsibility himself if caught by the police and he should not say that he acted on Lee’s instructions. He was to tell the police that all the drugs belonged to himself.
(4) At the time of the video-recorded interviews, the defendant thought that he would only be charged with dealing in 7.43 grammes of cocaine. He did not realise the seriousness of exaggerating the amount of drugs that he had dealt with.
The defendant gave further details about his dealing in cocaine in cross-examination. The effect of his evidence in cross-examination insofar as they related to his dealings in cocaine were as follows:
(1) The defendant agreed that for selling five packets he would earn around $350, calculated by $100 remuneration for each of the two packets that he was able to sell at the higher price and $50 for each of the remaining three packets sold at the lower price.
(2) In terms of monthly workload and remuneration in addition to what he had already told the court in-chief, the defendant said that:
(a) He earned around $8,000 to $9,000 per month in October 2018. In terms of the number of days he worked, he said he could not remember.
(b) For November 2018, he worked around 14 to 15 days.
(c) For December 2018, he worked around 9 to 10 days.
(d) For January 2019, he worked around 12 to 13 days.
(e) For February 2019, he did not work and did not earn any money because he had been ill.
(3) He would be paid his remuneration by Lee once a month and at the end of the month.
The defendant was cross-examined about the inconsistency between his stated monthly income from dealing in cocaine for Lee and the actual number of packets of cocaine that he said he would have dealt with each month. The inconsistency is quite apparent from the figures already mentioned. Take, for example, November 2018, on the basis of the defendant’s evidence that he delivered five packets of cocaine every time he worked, the remuneration to which he was entitled on those five packets would only be around $350. On the defendant’s own estimate that he only worked 14 to 15 days in November 2018, the defendant’s remuneration would only be around $4,900 to $5,250, far less than the $15,000 the defendant said he received from Lee as his remuneration for delivering cocaine in November 2018, or, as put by the prosecution in cross-examination, on the defendant’s own evidence, he would have needed to work 42.8 days in November 2018 in order to earn his $15,000 remuneration.
When confronted with this inconsistency, the defendant stated that he also received tips from regular customers. The issue of tips was not mentioned in the video-recorded interview, nor in-chief. The defendant stated that he would be able to receive around $3,000 to $4,000 in tips in total in a good month. That the defendant received tips does not resolve the significant discrepancy between, on the one hand, the number of packets of cocaine the defendant claimed to have delivered in any given month, and on the other hand, the amount of remuneration received from Lee. This is because of two reasons:
(1) Even if one were to add the amount of tips to the mix, the discrepancy nonetheless remained very significant. Take again the example of November 2018, adding $4,000 tips to the calculation only increases the remuneration based upon his evidence of packet delivery to around $9,000, still far away from the $15,000 the defendant said he received from Lee for drugs delivered in November 2018.
(2) In any event, the defendant’s evidence in cross-examination was that he would hand over all of the proceeds from cocaine sales to Lee and his associates without the tips which he kept for himself and then he would receive his remuneration from Lee himself once per month at the end of the month. The effect of this evidence is that the tips that the defendant may have received had nothing to do with the monthly remuneration that he received from Lee. The discrepancy already identified, therefore, remained unexplained.
The defendant was also cross-examined about whether he kept any cocaine in the flat at which he resided. The defendant described that at the end of January 2019, after he picked up the four to five packets of drugs from Allways Centre, Lee told him he did not need to work that day and asked him to keep those drugs at his residence for delivery to customers later. However, the defendant then claimed that because Lee told him that the drugs were not of good quality he was not told by Lee to deliver those drugs to anyone and those drugs remained at his home.
Later on, the defendant said that on some other days he worked, similar things happened as well starting from end of January 2019 in that after the defendant delivered some of the cocaine to customers, Lee would call him and say that the customers would complain about the quality of the cocaine after which the defendant had to go back to Allways Centre to collect more drugs and deliver them to the customers who complained.
The defendant would also collect from the customer the supposedly poor quality cocaine which he then kept in his room. According to the defendant’s testimony under cross-examination, the 41 packets of cocaine seized from his room on 14 February 2019 (at around 81 per cent purity) were the poor quality cocaine that were returned to him by complaining customers.
There are a number of fundamental problems with the defendant’s evidence about returned cocaine and that the 41 packets of cocaine seized from his home represented returned cocaine:
(1) According to the defendant’s earlier evidence, he had not dealt with cocaine since he felt ill on 25 January 2019. This is completely inconsistent with his later testimony that the amount of returned cocaine became a total of 41 packets from end January 2019 when he was supposed to have stopped working already. It is also implausible in the context of the defendant claiming to have delivered only four to five packets of cocaine each time he worked and that he only worked 12 to 13 days in January. In order for there to be 40 or so returned packets of cocaine from dissatisfied customers, the vast majority of the packets he delivered for the whole of January would have been returned from disgruntled customers. That was simply not his evidence.
(2) The defendant’s version about dissatisfied customers returning cocaine also included the defendant’s explanation that he had to go back to Allways Centre to collect better quality cocaine to deliver to dissatisfied customers as replacement. This was in direct contradiction to an earlier answer the defendant gave in cross-examination in which he confirmed that once he collected cocaine at the start of his work day from Allways Centre he would not return to that address to pick up more drugs.
(3) The defendant’s evidence in cross-examination about the origin of the 41 seized packets of cocaine were completely inconsistent with the answer the defendant gave to the police under caution at Exhibit P2A, paragraph 22 where the defendant said that the 41 seized packets of cocaine were collected by the defendant from Allways Centre the night before, that is 13 February 2019, or a mere two nights from the day of the video-recorded interview. I find it inconceivable that if the source of the 41 seized packets of cocaine were made up of returned cocaine, the defendant would have been mistaken about the source of the drugs he collected a mere two nights prior to the second video-recorded interview.
The defendant’s testimony before this court as to the number of packets of cocaine delivered each time he worked, the number of days on which he dealt with cocaine, the amount of remuneration he received from helping Lee to deal with cocaine, were all materially inconsistent with his admissions in the two video-recorded interviews.
Simply put, the defendant before this court attempted to significantly reduce the amount of cocaine he supposedly dealt with over the course of the Count 2 conspiracy. That the defendant claimed that he was worried about his parents being investigated and that he did not want the police to investigate further did not logically explain why, on his version, he would exaggerate the amount of cocaine that he had dealt with over the course of several months. The version the defendant gave before this court did not implicate his parents in any way. If it represented the truth, the defendant would have simply said that to the police instead of exaggerating his dealings in drugs.
In conclusion, as already described above, the defendant’s testimony before this court is riddled with inconsistencies and inherent improbabilities. I have taken into account the fact that the defendant had no previous convictions prior to the present incident. Despite that, I find that the defendant in his testimony was simply attempting to falsely downplay the amount of cocaine he had dealt with whilst working for Lee. I, therefore, reject the evidence that the defendant gave in the Newton hearing.
The variables underlying the calculation of the amount of cocaine trafficked under Count 2
As guided by the Court of Appeal judgments already mentioned above, this court will proceed to assess the approximate amount of cocaine trafficked under Count 2 by recourse to inferences drawn or assumptions made based on the remaining available evidence. I will deal with the various variables affecting this calculation in turn. I have particularly taken note of the Court of Appeal’s guidance at paragraph 102 of the judgment in Chan Kam Loi that:
“Sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the court to impose a just sentence.”
Firstly, this court is of the view that the descriptions as to the amount of packets of cocaine dealt with on each day the defendant worked and the number of days on which the defendant worked in any given month are inherently unreliable. By way of contrast, the amount of remuneration to which the defendant was entitled based on per cocaine packet delivered and the total monthly remuneration received by the defendant would be far more reliable indicators.
The defendant admitted under caution that his monthly remuneration was about $15,000. I accept that this amount may fluctuate from month to month. Taking a position most favourable to the defendant, I will proceed with the calculations on the basis that the defendant earned on average $12,000 per month from his drug-dealing activities representing a 20 per cent discount from his admission under caution.
For the month of February 2019, I assess his remuneration at one-third of $12,000 as representing his income to which he was entitled for dealing in cocaine between 1 and 12 February 2019, amounting to $4,000. I will not count October 2018 since he only admitted under caution that he started working for Lee at the end of October 2018. Therefore, in November 2018, December 2018, January 2019 and February 2019, I assess the defendant’s total income (or income to which he was entitled) from dealing in cocaine for Lee to be $40,000 in total.
On the basis of the defendant’s admission under caution that he was entitled to $50 per packet delivered, I find that he would have dealt with at least 800 packets of cocaine between 1 November 2018 and 12 February 2019.
Secondly, the 41 seized packets of cocaine had a combined gross weight of 9.09 grammes of a solid, meaning an average of 0.2217 grammes of solid per packet of drugs. Applying that to the 800 packets already mentioned, I find that the gross weight of drugs dealt with under those 800 packets to be 177.36 grammes.
Thirdly, the 41 seized packets of cocaine had a purity content of 81.73 per cent. I note the observation from the Court of Appeal in Chan Kam Loi at paragraph 104 of the judgment that there are inevitable variations in purity content between different consignments of drugs and that the Court of Appeal in that case considered an almost 20 per cent reduction in purity to be justified when using such a figure to calculate the total amount of drugs dealt with over a period of time.
I will, therefore, use a purity content of 60 per cent in calculating the narcotic content contained in the 800 packets of drugs as mentioned above, thereby giving the defendant an allowance of slightly over 20 per cent. I find that the net weight of cocaine dealt with under those 800 packets to be 106.41 grammes (that is 60 per cent of the gross weight of 117.36 grammes).
Fourthly, the actual amount of cocaine seized on 14 February 2019 (net weight 7.43 grammes), which the defendant said under caution was collected by him the night before on 13 February 2019, must also be taken into account. Therefore, for the period of the conspiracy covered by Count 2, I find that the defendant would have dealt with at least 113.84 grammes of cocaine. However, as noted by the Court of Appeal at paragraph 41 of the judgment in Tsang Ka Wing, the defendant is further entitled to a slight adjustment in his favour given the possible margin of variation in the defendant’s account. I will, therefore, proceed to sentence the defendant on Count 2 on the basis that he dealt with a total of 110 grammes of cocaine over the period of the conspiracy.
The starting point for Count 2
Adopting the guidelines set out in The Queen v Lau Tak Ming, [1990] 2 HKLR 370, 110 grammes of cocaine falls into the bracket of 8 to 12 years’ imprisonment. In the circumstances of the present case, I find that the appropriate starting point is one of 9 years 7 months’ imprisonment.
The final sentences for both counts
In respect of Count 1, having considered all the circumstances including the matters advanced in mitigation and the fact of the defendant’s plea, I find that the appropriate sentence is 8 years and 6 months.
In respect of Count 2, the defendant testified in a Newton hearing, attempting unsuccessfully to downplay the amount of drugs that he dealt with during the course of the conspiracy; It is trite law that the one-third discount arising from a plea of guilty may be reduced in these circumstances because of a lack of remorse shown by the unjustified position taken by the defendant in a Newton hearing. However, in the present case, the defendant is also entitled to a slight discount for the fact that the police would not have been aware of the conspiracy or the length or scope of it but for the defendant’s own admissions under caution. I find that these two factors, one against and one for the defendant, balance each other out in the circumstances of the present case.
Having considered all the circumstances, I find that the appropriate sentence in respect of Count 2 is 6 years and 4 months.
The defendant trafficked in dangerous drugs under the instructions of Lee in respect of both charges. However, the conspiracy involved in Count 2 concerned the picking up of cocaine from a specified address in Causeway Bay and the subsequent delivery of it to others. Count 1 was different as it involved a different drug involving a far larger quantity than his usual dealing and also different circumstances in pick-up and delivery. This court, therefore, finds it just that part of the sentence imposed on Count 2 ought to run consecutively on Count 1.
Having regard to totality, I find it just that 1 year of the sentence on Count 2 is to run consecutively to the sentence on Count 1. Defendant, please stand up. For the reasons I have mentioned, I sentence you to an imprisonment term of 8 years and 6 months on Count 1 and an imprisonment term of 6 years and 4 months on Count 2.
I order that 1 year of the sentence on Count 2 to run consecutively to the sentence on Count 1, resulting in a total sentence of 9 years 6 months in respect of both counts.