To the amended indictment, the defendant maintained his not guilty plea to the original three counts but pleaded guilty to the added Count 4. Upon admission of the facts, he was convicted of Count 4.
The prosecution informed the court that they would not proceed further against the defendant for the other three counts. Having heard submission, the court is satisfied that in the circumstances, he should be acquitted of Counts 1 to 3.
The facts of the case which the defendant admitted may be summarised as follows. A man, Ho Tak-kuen was intercepted when he was walking out from a hotel which run serviced apartments. Upon search, some 15 grammes of cocaine was found on him. With the key found on Ho, entry was gained into one of the apartments in the hotel.
There were two bedrooms in that apartment. Inside one of the rooms was the girlfriend of the defendant who I will call Hung. In another room which was not locked and occupied by Ho, more than 680 grammes of cocaine and dangerous drug paraphernalia were found on the top of a desk.
There were also a lot of plastic bags inside the drawer of the desk. On top of a washing machine in the living room, items containing traces of cocaine and several boxes of soda powder were found.
The apartment was rented in the name of the defendant for six months starting 5 January 2018. He was not there at the time of the search and was arrested only later.
CCTV footage show that the defendant had appeared together with Ho and/or another person called Chow at the corridor outside the apartment in January and February. There were also 45 phone calls exchanged between the defendant and Ho in the 20 days starting 18 January 2018.
The defendant admitted that he was aware that both Ho and Chow were trafficking cocaine, including those seized in this case in the apartment and he had permitted the two of them to use the apartment for mixing, heating, weighing and packaging cocaine for the purpose of trafficking.
I was told that the defendant is 34 years of age. He has received education up to Form 4 and was unemployed at the time of arrest.
The defendant is not a person with a clear record. His first conviction dated back to 2003 which was for the offence of assault occasioning actual bodily harm. On two previous occasions, he was convicted of the offence of trafficking in a dangerous drug.
For this offence, the offence of trafficking in dangerous drug, he was in 2009 sentenced to 32 months’ imprisonment and in 2019 sentenced to 3 years’ imprisonment. He was also, on three other occasions, convicted of the offence of possession of dangerous drug. The other offences for which he had been convicted includes possession of offensive weapon, acting as a member of triad society, common assault, gambling and assaulting a police officer.
The present offence was committed between January and February 2018. The defendant was arrested on 8 October 2019 whilst he was serving sentence for his previous convictions. He completed serving the sentences in December 2020.
In mitigation, learned counsel for the defence, Mr Adonis Cheung, urged the court to accept that the defendant had offered his guilty plea at the earliest opportunity he could make an informed decision. Mr Cheung also stressed that the defendant did not involve in the trafficking activity and derived no benefit from the drug operation. Mr Cheung said that after having known the drug activity, the defendants had asked Ho and Chow to leave their apartment.
Mr Cheung also informed the court that the latter of the two previous convictions of the offence of trafficking was indeed committed after the present case. And he has also asked the court to consider the sentence in the light that had the two cases been dealt with together, the principle of totality would have been applicable.
In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendant and mitigation put forward on behalf of him. Generally, the offence which the defendant now stands convicted is less serious than the offence of trafficking. There is no sentencing tariff as seriousness varies between cases.
The maximum sentence for the offence is 15 years’ imprisonment and a fine of $5 million. I gauged the culpability of the defendant having regard to the length of time he was involved, the type and quantity of drug involved, his extent of knowledge and his involvement as revealed in the facts he admitted.
The defendant knowingly permitted two other persons to use the apartment for the purpose of trafficking and manufacturing. He started to do so on 5 January 2018. The operation had lasted for slightly more than a month prior to the raid.
Despite it was asserted on behalf of the defendant that he had asked Ho and Chow to leave, the indication is that the operation would have carried on if not for the intervention of the police. That said, there was insufficient material to anticipate for how much longer the operation will last.
Ho was leaving the apartment on the day of the raid with not a small quantity of cocaine obviously for the purpose of trafficking. Almost 700 grammes of cocaine were found inside the apartment.
Whilst the drugs was found inside the room occupied by Ho and put inside plastic bags, the door was opened, the drug was not concealed and was just put on top of a desk. There were plenty of dangerous drug paraphernalia and at the time of the raid, quite a few of the items were put openly on top of the desk I just mentioned and on top of a washing machine in the living room. The apartment was not only a place for storage, it was used for manufacturing cocaine.
The operation was quite a substantial one. The act of the defendant facilitated this operation. His conduct cannot be described as passive connivance. He have frequent presence in the apartment together with the traffickers which indicate quite a degree of involvement. But I stress that I do not consider the case on the basis that the defendant had, by any means or to any degree, involved in the trafficking itself.
I note that, Hung, the above mentioned girlfriend of the defendant pleaded guilty to the offence of occupier permitting premises to be used for the unlawful storage of a dangerous drug and was in August 2019 sentenced to an imprisonment term of 2 years.
Each case, of course, has to be considered on its own facts and circumstances. In that case, the learned judge accepted that Hung had only become aware of the drug activities one week prior to her arrest and she had tried to have Ho stop such activity and to leave the apartment. The learned judge also accepted that Hung still stayed in the apartment only because she was ill.
In consideration, I have had regard to the Court of Appeal decision of R v Lee Kwok Keung, CACC 595/1996 and HKSAR v Ho Wing To [2011] 4 HKLRD 465. I also have regard to the following cases submitted by the defence, HKSAR v Lee Shek Tsui, HCCC 443/2014, HKSAR v Chu Pui Kuen, HCCC 5/2016 and HKSAR v Hong Hoi Ling, HCCC 98/2017.
As said, sentence was decided in each case taking into account the facts and circumstances pertaining to that case. I bear in mind the sentence imposed on Hung and remind myself of the risk of injustice if the sentencing imposed on the defendant is, without justification, significantly out of line with her sentence.
In all the circumstances, having regard to the difference between the defendant and Hung, in the circumstances surrounding committing of the offence, I am of the view that a starting point of 7½ years is appropriate for the defendant.
Prior to this case, the defendant had been convicted once for the offence of trafficking in dangerous drugs. In my judgment, his sentence should be enhanced for this reason and the appropriate extent of enhancement is 6 months. Having regard to the case of HKSAR v Herry Jane Yusuph, CACC 93/2019, I adopted the notional sentence after trial of 8 years.
The defendant pleaded guilty to the count after the first jury had been discharged as some prejudicial material came out in the testimony of Ho and when the trial of the second jury entered the second day which the Admitted Facts having been produced and before Ho was to testify again.
On the other hand, the court was informed that the defence at an early stage, in any case prior to the return date hearing, offered a guilty plea to the offence which the defendant now stands convicted but such offer was, at that time, not accepted by the prosecution.
Although the case has eventually proceeded to trial, as soon as the prosecution decided to include this offence in the amended indictment, the defendant pleaded guilty to the offence. In the circumstances, I am persuaded that the defendant is entitled to a one-third discount for his guilty plea.
As a matter of arithmetic calculation, the sentence to be imposed should be 5 years and 4 months.
The defendant committed the present offence in January 2018 and I was told that he was only arrested in October 2019 when he was serving the imprisonment term imposed on him on 30 January 2019 for offences including one charge of trafficking in a dangerous drug.
I was asked to take this into account because if the two cases had been dealt with together, the principle of totality would have been applicable. I am persuaded that this submission is sensible and reasonable.
Applying the consideration as stated in HKSAR v Ngai Yiu Ching, CACC 107/2011, taking into account that the present case was committed by the defendant on a different occasion earlier than the second trafficking case as shown in the criminal record. In my judgment, the overall culpability of the defendant had been increased by the subsequent case.
Taking into account totality, I am of the view that it would have been appropriate to order 8 months of the sentences to run concurrently. As this is no longer possible, I find it appropriate to reduce the present sentence further by 8 months to reflect the situation.
So defendant, please stand up. For the reasons I mentioned, I sentence you to an immediate imprisonment term of 4 years and 8 months for Count 4.