The defendant was originally committed for trial on two counts of trafficking in a dangerous drug. Count 1 was about 102.1 grammes of a solid containing 56.4 grammes of cocaine and Count 2 was about 11.5 grammes of a solid containing 8.73 grammes of cocaine.
The defendant’s first trial in May 2021 before Remedios J and the jury was aborted on the third day for a reason which is not relevant for the present purpose. After that, a second trial was listed to commence on 22 July 2022 with ten days reserved, with a Case Management Hearing on 4 March 2022. On 21 February 2022, however, Mr Hingorani, counsel on fiat, informed that the defendant would plead to Count 1 and the prosecution would offer no evidence on Count 2. The hearing dates for the second trial were therefore vacated and a date for plea and sentence was fixed instead. The matter was adjourned because of the pandemic.
Today, the defendant’s plea as indicated and she is convicted of Count 1 and acquitted of Count 2.
Facts
The Summary of Facts which the defendant agrees can be shortly stated as followed.
On 3 December 2018, the Customs intercepted an inbound parcel from Canada addressed to one Mr So and it was said to contain body lotion and trousers. However, upon examination, it was later found to contain the cocaine, the subject matter of Count 1.
On 6 December 2018, the Customs arranged a controlled delivery and the aforesaid Mr So was arrested as a result. Later in the same evening, there were calls from the defendant’s mobile phone to Mr So’s. The Customs found that the defendant had also contacted him previously on 20 November 2018. Eventually, when the defendant came to the building of Mr So’s address and took the parcel from him, she was also arrested.
It is now agree that the cocaine had a street value of HK$105,000. It is also agreed that the defendant knew that the parcel contained dangerous drugs and that she traffic in the same.
Antecedent
The defendant is now aged 53. She was born in Hong Kong and received education here up to Form 4. She is a divorcee and has a daughter aged 28 and she is now living alone. She says she work as a clerk in 2017. She has a clear record.
Sentence
It is now well established that for sentencing purpose, in the absence of evidence to show that the defendant’s role was anything other than that of a courier or a store keeper, the starting point would normally be calculated arithmetically based on the quantities of the dangerous drugs concerned, HKSAR v Herry Jane Yusuph. Mr Percy argues in mitigation that the defendant’s role was less than that of a courier. With respect, I disagree.
Mr Percy inform me that the defendant was not a drug addict. From the Summary of Facts she agrees, however, the defendant was obviously going to take that parcel which she knew contained dangerous drug to someone else. That make her a courier. The case of Wasim is clearly distinguishable.
For the present purpose, the sentencing tariffs for trafficking in cocaine follow those of trafficking in heroin as laid down in Lau Tak Ming, see Attorney General v Rojas. Based on Lau Tak Ming’s tariff trafficking in 50 to 200 grammes of heroin narcotic would carry a sentence of 8 to 12 years’ imprisonment after trial. Accordingly by an arithmetical approach trafficking in 56.5 grammes of cocaine narcotic would carry a sentence of 8 years and 2 months’ imprisonment.
Mr Percy had urged me to adopt a starting point lower than the arithmetical starting point, saying that the defendant’s role in the present case is lower than that of Mr So, the named consignee of the parcel. With respect, I do not agree that it is appropriate to speculate about the role of Mr So in this offence or that he played a higher role, a more important role than the defendant. Actually I do not see any valid basis to distinguish the role of Mr So and the defendant.
But since Remedios J had adopted a starting point of 8 years’ imprisonment for Mr So. I would do the same in respect of the defendant.
I trust that Mr Percy, had said all that can be said on the defendant’s behalf in mitigation including her plea. Mr Percy has also provided a chronology setting out the events leading to the present plea. In my judgment, the only factor which may reduce her sentence is her plea which was only laid after the dates for her second trial had been fixed.
As a result of the discount which may be granted for her plea would be less than one-third. HKSAR v Ngo Van Nam, having consider HKSAR v Chan Wing Tim & Another, which dealt with a similar situation in the pre - Ngo Van Nam era, I consider that it is appropriate to give the defendant a discount of one-fourth for the plea.
I therefore sentence defendant to 72 months’ imprisonment.