In this case, there are four defendants, D1 to D4, involving a total of seven charges, Charges 1 to 7. The defendants pleaded guilty to their respective drug-related charges in the Magistrate’s Court and were committed to this court for sentence.
The 2nd defendant, that is the present defendant before me, first appeared before me on 26 February 2021. However, since D2, that is the 2nd defendant, indicated her wish to give evidence for D1 at the trial, I adjourned her sentence pending the disposal of D1’s trial. Now that the trial of D1 has been dealt with by Deputy Judge Bruce on 22 November 2021, pursuant to his Lordship’s direction, I now continue to deal with D2’s sentence.
The charges of D2 are as follows: Charge 1, against D1 and D2 jointly, trafficking in 26,360 grammes of a solid containing 14,300 grammes of cocaine; Charge 3, against D1 and D2 jointly, trafficking 343.18 grammes of a solid containing 223.67 grammes of cocaine; and Charge 4, against D2 only, trafficking in 888 grammes of a solid containing 748 grammes of cocaine and 59.16 grammes of cannabis in herbal form.
Summary of Facts
The case was about four parcels, parcels 1 to 4, from Beijing. The sender of all of which was one “Hung Mong-mong”. Those parcels were delivered to Hong Kong separately between 25 and 28 February 2018.
Parcel 1 and 2 were not collected and were subsequently seized by Customs. Customs found that each of parcel 1 and parcel 2 contained a metal shell containing two metal cylinders which in turn contained cocaine. The total quantity of dangerous drugs found in parcel 1 and parcel 2 was 26,560 grammes of a solid containing 17,820 grammes of cocaine. It is noteworthy that the cocaine found in parcel 1 and parcel 2 were not the subject matters of any of the charges. On the other hand, parcel 3 contained the cocaine which was the subject matter of Charge 1 and parcel 4 contained cocaine which was the subject matter of Charge 7.
I mention the above just for the purpose of showing the whole picture. For sentencing purpose, I will only concentrate on the charges to which D2 has pleaded guilty.
Facts Pertaining to D2
On 1 March 2018, D2 sent to PW1, GoGoVan driver, a photo of waybills and asked him to collect parcel 2 and parcel 4 from the logistics company. A staff member of the logistic company, however, gave PW1 parcel 3 and parcel 4 instead, saying that parcel 2 had not yet arrived. The reason why PW1 was given parcel 3, which consisted of two boxes, was that its sender and recipient were the same as those of parcel 4.
Upon D2’s instruction, PW1 delivered parcel 4 to Royal View Hotel in Tsuen Wan where the parcel was collected by a male. Later in the same evening, PW1 also delivered parcel 3 to a flat in Kailey Industrial Centre in Chai Wan where it was collected by D1 from whom PW1 received a payment.
On the following day, that is 2 March 2018, at about 4.52 pm, customs officers intercepted D1 and D2 outside the aforesaid flat in Kailey Industrial Centre as they were walking out from that flat. A search was then conducted.
Inside the flat, customs recovered parcel 3, that is the two boxes of cocaine which were the subject matter of Charge 1. Besides, customs also found a metal box secured by a padlock. That padlock could be opened by a key seized from each of D1 and D2. Inside the metal box, there were three plastic bags containing cocaine, the subject matter of Charge 3, one electronic scale, one roll of aluminium foil, two bundles of Ziploc bags and two plastic bags.
Later on the same day, at around 11.55 pm, D2 was taken to a house on a Clear Water Bay Road for a search. D2 had the key to that premises, which was rented by her since September 2017. She paid the monthly rental, HK$55,000, in cash every month to the landlord. On the 1st floor and the cloakroom on the 2nd floor, customs found the cocaine and the cannabis, the subject matters of Charge 4, in various bags and containers. In the cloakroom, there was a safe which, D2 admitted, could be unlocked by her fingerprint. Inside the safe, there was a cash-counting machine as well as cash of 1,466,800, US$99,366, Japanese Yen140,000. The total amount of all these moneys was equivalent to around HK$2.24 million.
Furthermore, in the basement of the house, there were broken metal cylinders and shells, cutting machine, a hammer, used wrappings, an electronic scale and a bundle of Ziploc bags.
Under caution, the 2nd defendant said that some of the cocaine seized there, the safe, the cash and the cutting machine belonged to her boyfriend.
D2 now admits and accepts that she possessed the dangerous drugs found in the flat, in Kailey Industrial Centre and the house in Clear Water Bay Road for trafficking and that the cash found in the house was received or possessed by her as a result of drug trafficking.
Antecedent (The Defendant’s Background)
D2 comes from Columbia where she was born and is now aged 34. She entered Hong Kong on 7 June 2015 and was allowed to stay until 5 September 2015. She has two previous convictions in Hong Kong, both of them were breach of condition of stay, one in 2013 and the other in 2018. She is single and has a daughter aged about 15 and a son aged about 10.
Sentence
The maximum sentence of trafficking in a dangerous drug is life imprisonment and a fine of 5 million.
According to Attorney General v Pedro Nel Rojas, sentencing for trafficking in cocaine follows the sentencing tariff for trafficking in the same quantity of heroin. For trafficking of less than 600 grammes of the narcotic, the applicable sentencing tariffs are provided in R v Lau Tak Ming. For trafficking in excess of 600 grammes, the applicable tariffs are given in HKSAR v Abdallah, which says that trafficking in between 4,000 and 15,000 grammes of the narcotic carries a sentence of between 26 to 30 years’ imprisonment and trafficking in over 15,000 grammes carries a sentence at the court’s discretion.
In the present case, putting aside the cannabis, the total amount of cocaine narcotic involved in the charges of D2 was 15,271.67 grammes. Therefore, the defendant cannot expect a sentence below 30 years if she was convicted after trial.
Furthermore, the judgment of HKSAR v Herry Jane Yusuph of the Court of Appeal, dated 26 November 2020, clarifies that the arithmetical starting point, which is based on the quantity of narcotic concerned, is only intended for low-level traffickers who played the role of couriers or storekeepers. For someone who is more involved or higher up in hierarchy in the drug trade, an upward adjustment would be required.
Although the judgment of HKSAR v Herry Jane Yusuph was handed down after the commission of the offences in the present case, as I have said earlier, the judgment only serves to clarify the law as it has always been, namely, that the role of the offender is a relevant sentencing consideration. The judgment did not create any new sentencing principles. Moreover, if the case involves a cross-border element, then that would provide another aggravating factor for enhancement of sentence.
For Charge 1, which involved 14,300 grammes of cocaine narcotic, according to HKSAR v Abdallah, the arithmetical starting point would be 29 years and 9 months’ imprisonment.
For Charge 3, which involved 223.67 grammes of cocaine narcotic, according to R v Lau Tak Ming, trafficking in between 200 and 400 grammes of narcotic carries a sentence of 12 to 15 years’ imprisonment. Therefore, the arithmetical starting point for this charge would be 12 years and 4 months’ imprisonment.
Charge 4 entails 748 grammes of cocaine narcotic and 59.16 grammes of herbal cannabis. For sentencing purpose, I will focus on the cocaine and ignore the cannabis as the latter would not have any significant contribution to sentence.
According to HKSAR v Abdallah, trafficking in 600 to 1,200 grammes of the narcotic carries a sentence of between 20 and 23 years’ imprisonment. Therefore, the arithmetical starting point for this charge would be 20 years and 9 months’ imprisonment.
As aforesaid, the above arithmetical starting points are suitable for offenders who are mere couriers or storekeepers. However, there is evidence before me that D2 was no mere courier or storekeeper in that she was much more deeply involved. It is plain that she played an important role in the drug trade and was much higher in the hierarchy than that of a courier or storekeeper.
In my assessment, D2 was obviously a trusted and senior member of the syndicate or otherwise she would not be entrusted to deal with over 15 kilogrammes of cocaine. This is also reinforced by her possession of what is equivalent to about HK$2.2 million in cash, representing proceeds of drugs, not to mention her renting of the premises concerned.
In addition, at least as far as Charge 1 is concerned, there was an international element in that D2 played a significant role in facilitating the importation of the drugs to Hong Kong (see HKSAR v Abdallah and HKSAR v Chung Ping Kun).
I am mindful of HKSAR v Yeung Lee Ming Simon, which says that as trafficking of large quantities of drugs attracts extremely lengthy sentences, in serious cases of drug trafficking, the range of enhancement for a cross-border element should not exceed 2 years in order to avoid double punishment. In the present case, however, apart from the cross-border element, as aforesaid there is also D2’s more important and higher role in the drug syndicate.
In view of all the aggravating factors mentioned above and for the ease of calculation, I would add 2 years and 6 months on top of the sentence of Charge 1, which is the most serious of her charges. Therefore, for this charge, Charge 1, the starting point after trial becomes 32 years and 3 months’ imprisonment.
I note that D2 had once indicated an intention to reverse her plea before Deputy Judge Bruce and the hearing date was set on 1 December 2021 for that purpose. However, on 26 November 2021, Mr Raffell wrote to court confirming that D2 no longer wishes to pursue her application to reverse her plea. As a result, the matter was fixed for sentence before me. I trust that Mr Raffell has said all he could in mitigation for D2. I also have regard to what is said by the C&E regarding the limited assistance provided by D2, which is described as having limited practical use and did not result in any prosecution.
Having regard to HKSAR v Kilima Abubakar Abbas, in all the circumstances, the discount I will grant to D2 for her timely plea and her limited assistance is about 36.5 percent, which I think is already a little bit generous.
The sentences after rounding off are as follows: Charge 1, 20 years and 5 months’ imprisonment; Charge 3, 7 years and 10 months’ imprisonment; Charge 4, 13 years and 2 months’ imprisonment.
Then there is a consideration of totality, for which the court is required to step back and look at the overall sentence in the round. Having regard to the total amount of all the dangerous drugs involved and bearing in mind that the court has already enhanced the sentence of Charge 1 for the aggravating circumstances, I order that the aforesaid sentences are to run concurrently.
Therefore, D2 is sentenced to a total of 20 years and 5 months’ imprisonment.