COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in dangerous drugs, trafficking in 94.5 grammes of a solid containing 75.15 grammes of cocaine and 660 grammes of cannabis in herbal form. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
Summary of Facts
On 22 April 2020, police officers conducted an anti-narcotics operation in the Harbour Plaza 8 Degrees Hotel, on Kowloon City Road, Kowloon. At 2:45 am on 23 April 2020, the defendant was seen entering Room 1912 on the 19th Floor using a key card. The police then raided that room 15 minutes later using a key card provided by the hotel. They found the defendant sitting on the bed, a search warrant was executed.
The hotel room was searched and in a drawer of a table the police found four transparent resealable plastic bags containing cocaine as well as an electronic scale, a plastic spoon, a pair of scissors and some other empty transparent resealable plastic bags. In a wardrobe, they found a bag containing three more electronic scales, a vacuum sealer, as well as 14 plastic bags containing 660 grammes of cannabis in herbal form. In a safe inside the wardrobe, they found two more transparent resealable plastic bag containing cocaine.
The defendant was arrested and cautioned. Under caution, he remained silent and later refused to answer questions in a subsequent video-recorded interview.
It was agreed that the street value of the dangerous drugs was estimated to be $120,771 for the crack cocaine and $95,351 for the cocaine powder. In addition, the estimated street value for the cannabis in herbal form was $144,540.
CCTV footage from the hotel showed that the defendant had entered and left the hotel room and hotel on a number of occasions between 18 April 2020 and just prior to his arrest on 23 April 2020.
The defendant admits and accepts he was knowingly in possession of the dangerous drugs seized for the purposes of trafficking.
Defendant’s Background and Mitigation
The defendant is now 29 years old, born in Hong Kong, educated up to Form 6 and unemployed at the time of his arrest. He also had a clear record. Counsel for the defendant, Mr Wong, has said all he can say on behalf of the defendant and stressed that his best mitigation is his plea at the earliest opportunity.
I have had regard to all mitigation put forward. Mr Wong has informed this court in his written mitigation that on 6 January 2022, the defendant provided information to the police which he acknowledges did not lead to the police apprehending any suspects. It is submitted that a further token discount could be considered for his willingness to provide assistance to the authorities.
However, the defendant was arrest in April 2020 and has been in custody since then. No information was forthcoming for a very long time after he was remanded in custody. Apparently he gave the police a nickname but this led to nothing and was of no practical use. Under such circumstances, I am not prepared to consider any further discount for this factor.
Sentencing
I have considered the approach to the sentence of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and I am satisfied that the defendant was a storekeeper and/or perhaps a courier, therefore his sentence is to be determined by the relevant tariff and the quantity of dangerous drugs involved.
The tariff for trafficking in cocaine follows the tariff for trafficking in heroin, AG v Pedro Nel Rojas [1994] 1 HKC 342. For this present case, the tariff follow those that are laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370 where between 50 to 200 grammes is involved, this will attract a sentence of between 8 to 12 years’ imprisonment after trial. In the present case, for the 75.15 grammes of cocaine, I will therefore adopt an 8 years and 8 months sentence as starting point.
As far as the herbal cannabis in herbal form is concerned, I have taken into account the authority of AG v Tuen Shui Ming and Another [1995] 2 HKCLR 129 where under 2,000 grammes of cannabis resin is trafficked, this will attract a sentence of up to 16 months’ imprisonment after trial. If the 660 grammes of cannabis here in this case was cannabis resin, then mathematically a starting point of 5 months’ imprisonment after trial would be appropriate.
In Secretary for Justice v Lee Siu Kei [2006] 1 HKC 499, the Court of Appeal observed that cannabis resin has an average concentration of THC four times higher than the average found in herbal cannabis. Accordingly, a downward adjustment of sentences for herbal cannabis is required to reflect the lower THC content.
This case does involve two types of drugs, multiple drugs, and I have considered the approach to sentencing more than one type of drug but trafficking in herbal cannabis of this quantity will not attract a lengthy term of imprisonment.
However, the herbal cannabis here is not so insignificant that I should ignore it. Therefore I find it appropriate to add 1 month to the starting point of 8 years and 8 months for the cocaine, resulting in a starting point of 8 years and 9 months for this charge.
Conclusion
The defendant pleaded at the earliest opportunity in the Magistracy Court for which he is entitled to a full one-third discount. That discount generally takes into account most mitigating factors available to a defendant in such a serious offence such as prior good character and obviously remorse. After that discount is applied to the starting point of 8 years and 9 months, the sentence is reduced to 5 years and 10 months’ imprisonment.
Accordingly defendant you will serve a sentence of 5 years and 10 months’ imprisonment. Do you understand that sentence?
DEFENDANT: Understood.