In respect of the 1st charge, the accused were charged jointly to have trafficked in a dangerous drug, namely, 501 grammes of a solid containing 236 grammes of cocaine. For the 2nd charge, the 1st accused was charged to unlawfully trafficking in dangerous drug, namely, 38.3 grammes of a solid containing 18.9 grammes of cocaine.
On 13 August 2018 at around 8.15 in the evening, the 1st defendant was seen by the police boarding a private car at the roundabout outside Lei Yue Mun Estate. The private car was then driven to To Kwa Wan. It stopped at Shing Tak Street at around 8.51 pm. About a minute later, a 7-seater arrived and parked behind the private car. The driver of the private car, the 2nd accused, got out of the car and walked towards the 7-seater. Through the window of the driver’s seat, the 2nd accused took a green box from the driver of the 7-seater. The 2nd accused then walked back to his private car with the green box and drove off. The private car then headed towards Mong Kok and stopped outside No 50 Larch Street. The police officers then intercepted the vehicle and the private car was searched. The green box was found in the footwell of the front passenger seat where the 1st accused was seated. Inside the green box, the relevant drugs in respect of 1st charge were found. The drugs were found to be contained in 21 plastic bags. The 1st accused was later taken back to his residence in Lei Yue Mun Estate. In a drawer in the living room, the dangerous drugs involved in respect of the 2nd charge were found.
The 1st accused is now 23 years old. He was born in Hong Kong, with one previous record of theft for which he was sentenced to a probation order for 15 months. That was happened in 2012. He was educated up to Form 4 level and was a part-time construction worker before his arrest.
In mitigation, Mr Kwan, counsel for the 1st accused, handed to this court four mitigating letters written by the accused, his mother, his uncle and his aunt. Mr Kwan submitted that the accused committed the present offence because he had incurred a debt because of his gambling problem. Mr Kwan also submitted that according to the defendant’s aunt, the 1st accused was emotionally very attached to his mother, and due to his mother’s separation with his father, the accused was very emotionally affected. And according to the accused’s mother’s mitigating letter, the accused’s mother also suffered from cancer. Now Mr Kwan submitted that although the 1st accused was charged with two separate charges, the two offences were committed on a single date and should be regarded as a single transaction.
For the 2nd accused, he is now 24 years old. He has a clear record. He was born in China in 1994 and came to Hong Kong in 2003 when he was 9 years old. And he was educated up to Form 3 level and before the arrest, he was a construction worker. Mr Khosa, counsel for the 2nd accused, submitted that the reason why the 2nd accused committed the present offence was because of the financial burden on him as he had to provide for the mother’s medical expenses due to the mother’s kidney disease. Mr Khosa submitted that because of the medical expenses of the 2nd accused’s mother, the 2nd accused has now incurred a debt of around $30,000.
Now trafficking in dangerous drugs is a very serious offence. The people committed of this offence will inevitably face with a long term of imprisonment. The Court of Appeal has laid down sentencing tariff in respect of different kinds of drugs for this offence. In sentencing, the sentencing tariff laid down by the Court of Appeal is binding upon the Court of First Instance. The Court of First Instance cannot deviate from the sentencing tariff in considering sentence. The heavy sentence imposed by the court for this kind of offence is for deterrence purpose. Factors like a clear record, young age, financial difficulties are not valid mitigating factors. For both accused, I do not see any valid mitigating factors apart from their guilty plea.
Applying the sentencing tariff laid down under the court of a case of Lau Tak Ming, for trafficking in cocaine in the quantities of 200 to 400 grammes, the appropriate starting point should be 12 to 15 years’ imprisonment. As submitted by counsel, in respect of the 1st charge, the appropriate starting point should be 12½ years’ imprisonment. Applying the same tariff for trafficking in 10 to 50 grammes of cocaine, the appropriate starting point should be 5 to 8 years’ imprisonment. As submitted by Mr Kwan, the appropriate starting point for the 2nd charge should be 5½ years’ imprisonment. I agree with Mr Kwan that the total quantities of dangerous drugs in respect of two charges should be considered together.
In respect of the 1st charge, as mentioned, for both the accused, the starting point should be 12½ years’ imprisonment. Giving a full one-third discount for the accused’s guilty plea, the sentence be reduced to 8 years and 4 months. For the 2nd charge, the starting point is 5½ years’ imprisonment. The sentence be reduced to 44 months taking into account the guilty plea of the 1st accused. And I order that only 4 months of the sentence of the 2nd charge be run consecutively to the sentence of the 1st charge for the 1st accused. Only 4 months. And the rest of the sentence be served concurrently. It means that the 1st accused will serve a total sentence of 8 years and 8 months for both, for the two offences.