COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and committed before me 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 the dangerous drug involved, background of the defendant and mitigation put forward on his behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarised as follows.
The defendant was a passenger of a taxi which was stopped by police officers performing road snap check. Cocaine contained in seven packets, which is the subject matter of Charge 1, was found on the defendant. He claimed the drug was for his own consumption.
The defendant was then taken to the hotel in which he had rented a room. Inside the safe of the hotel room, cocaine contained in 13 packets, which is the subject matter of Charge 2, was found. The defendant admitted trafficking in the drug found.
In a subsequent video-recorded interview, the defendant remained silent.
I was told that the defendant is now 29 years of age. He received education up to Form 3 level. He have work in the construction industry but lost his job during COVID. He then work as a warehouse assistant with salary cut. He lost his job also later.
This was the second time he committed the offence of trafficking in dangerous drug. In March 2011, he was sentenced to an imprisonment term of 3 years and 3 months for the offence.
In mitigation, learned counsel for the defence, Ms Crebbin, stressed that the defendant had pleaded guilty at the earliest opportunity. Ms Crebbin told the court that as the defendant has to pay for his drug habit and insurance, he was in financial difficulties. It was in such circumstances that the defendant succumbed to temptation and took up the job. Ms Crebbin told the court that he was promised 70 to 80 grammes of cocaine as reward. Ms Crebbin further told the court that the defendant started to abuse drug since 2011 and at the time of arrest he consumed 8 to 10 grammes of cocaine per day.
In the circumstances, Ms Crebbin asked the court to take into account the quantity of drug which the defendant asserted would be his reward into account. The defendant asserted that this would be for his own consumption. In support of this assertion, Ms Crebbin referred to the conviction record of possession of dangerous drug in 2019 as well as the test conducted when the defendant was taken into custody for this case which showed positive result for cocaine.
The defence produced a letter written by the defendant in which he expressed remorse and his desire to get rid of the addiction. A letter of the brother of the defendant was also produced. A touching letter, as Ms Crebbin described. Mr Tse described his brother as of good nature and pleaded leniency on his behalf. A letter of employment offered to the defendant was also produced, which Ms Crebbin submitted was an indication that people are still willing to give the defendant a chance.
The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike and the degree of harm.
In the circumstances of the present case, the ultimate sentence should be considered having regard to the total quantity of narcotic content in the two charges. The narcotic content in Charge 1 was 160.6 grammes. The narcotic content in the other charges was 270.63 grammes. The total quantity was 431.23 grammes.
In Lau Tak Ming, the Court of Appeal set down tariffs as follows. If the narcotic content is between 50 and 200 grammes, the sentence to be considered is 8 to 12 years. If the narcotic content is between 200 and 400 grammes, the sentence to be considered is 12 to 15 years. If the narcotic content is between 400 and 600 grammes, the sentence to be considered is 15 to 20 years. I see no reason to justify any departure from the sentencing tariff.
This was the second time the defendant has committed the offence of trafficking. Having considered the whole circumstances and having regard to submission of Ms Crebbin, in my judgment, the starting point for each charge as well as the total sentence should be enhanced by 3 months for this reason.
On the other hand, I am prepared to accept that part of the drug in the possession of the defendant was intended for his consumption. In this connection, I have a regard to cases including HKSAR v Wong Suet Hau, CACC 366/2000, HKSAR v Cheung Man Wai, CACC 189/2015, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, and the sentencing consideration mentioned in these cases as well as HKSAR v Yeung Shek Yung, CACC 314/2016. Having regard to submission of Ms Crebbin, in all the circumstances, I do not accept that those behind the scene would be so generous as to allow the defendant to retain such a high proportion of drug, as alleged, for his own purpose. I am prepared to accept that a small quantity of the drug was intended for the self-consumption of the defendant. I also have to take note that possession of cocaine by itself usually carries a custodial sentence if the quantity involved is significant. Latent risk in this case was, in my assessment, substantial -- very substantial. I am persuaded to lower the starting point by 3 months for this assertion. As a result, the effects of the aggravating factor and the assertion of self-consumption become evened out.
Having considered the whole circumstances, I adopt the following notional sentences after trial having taken into account the factors I have mentioned: Charge 1, 10 years and 11 months; Charge 2, 13 years. Having regard to the total quantity of the drug involved and having regard to the totality principle, the total notional starting point should be 15 years and 9 months. Having considered the whole circumstances, including what learned counsel said on behalf of the defendant, in my judgment, one-third is the extent of discount the defendant is entitled to in this case. The defendant is entitled to a one-third discount for his guilty plea.
For the reasons I have mentioned, I sentence you to the following immediate imprisonment terms. Charge 1, 7 years and 3 months. Charge 2, 8 years and 8 months. I order 3 years and 3 months for the sentence of Charge 2 to run consecutively to that of Charge 1. You are to serve a total sentence of 10½ years for the two charges.