COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of dangerous drugs involved, background of the defendant and mitigation.
The facts of the case may be summarised as follows.
The defendant was carrying a white paper bag when he was stopped and searched on a street. Inside that paper bag were four bags each containing dangerous drugs. Inside two bags were 768 grammes of a powder containing 304 grammes of cocaine and inside the other two bags were 4.98 grammes of cannabis in herbal form. A total of slightly more than $7,000 was also found on him.
In an interview, the defendant denied the offence and claimed the bag had been passed to him by someone else.
The defendant is now 29 years old and has a clear record here before. He came from Bengal and is a Form 8 holder.
In mitigation, learned counsel for the defence, Mr Hemmings, stressed that the defendant pleaded guilty at the earliest opportunity. Despite the test conducted on the defendant when he was taken into custody revealed that he had consumed drugs. There is no contention that any of the drugs the defendant possessed in the present case was intended for his own consumption.
I am satisfied that the role of the defendant was that of a courier. The defendant was trafficking in two types of drugs, with cocaine being obviously the more prominent drug in terms of harm and quantity.
In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal suggested that for sentencing in heroin of a quantity of 200 to 400 grammes, a sentence between 12 and 15 years should be considered.
In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff.
The defendant trafficked in two types of dangerous drug but in view of the fact that the less prominent drug was only 4.98 grammes of cannabis in herbal form, I do not see the need to enhance the starting point for this reason. In my judgment, this small quantity of cannabis has little impact on the sentence in this case.
Having regard to the quantity of cocaine involved and the role of the defendant, I adopt a starting point of 13½ years. The defendant is a Form 8 holder and this is an aggravating feature which I am duty-bound to take into account. Having regard to submission of Mr Hemmings and the case of HKSAR v Ali Saif, CACC 309/2017, I am of the view that the starting point should be enhanced by 15 months. In all the circumstances, I adopt 14 years and 9 months as the notional sentence after trial.
The defendant pleaded guilty before a magistrate and for this reason is entitled to a one-third discount.
Having considered the whole circumstances, including mitigation submission from Mr Hemmings, in my judgment one-third is the extent of discount the defendant is entitled to.
For the above said reasons you are sentenced to 9 years and 10 months’ imprisonment.