COURT: The two defendants before me plead guilty to charges of trafficking in dangerous drugs in the magistracy. The 1st charge against both defendants charged them on 1 November 2021, in Tsim Sha Tsui, unlawfully trafficked in 12 grammes of a solid containing 10.1 grammes of cocaine. The 2nd charge also charged both defendants on the same day, inside a private car in Tsim Sha Tsui, unlawfully trafficked in dangerous drugs containing 3.68 grammes of a solid containing 3.18 grammes of cocaine. The 3rd charge against the second defendant only. He was charged on 4 April 2022, also in Tsim Sha Tsui, unlawfully trafficked in dangerous drugs, namely, 142.7 grammes of a solid containing 110.5 grammes of cocaine.
As it can be seen from the charges, it involved two incidents in Tsim Sha Tsui. The 1st defendant was only involved in the first incident, whereas the 2nd defendant was involved in both incidents.
So far as the first incident is concerned, the facts run as follows. On the early morning of 1 November 2021, a team of police officers were conducting anti-crime patrol in the area of Hanoi Road in Tsim Sha Tsui. At about 2.22 am on 1 November 2021, police officers saw a private car parked outside No. 1A of Hanoi Road. Police officers saw the 2nd defendant alighted from the driver’s seat and walked into a building at Carnarvon Road.
The officers kept the car under observation, and they then saw the 1st defendant, who had been sitting in the front passenger seat, move to the driver seat and alighted the car from the driver’s seat. After alighting, the 1st defendant walked into the building as well. The police officers followed the 1st and 2nd defendants into the building and stopped them for enquiry.
The 1st defendant, when being intercepted, struggled. She was holding something in her fist. Upon search, a plastic bag containing a white solid was found in her right hand. Upon further search, the key to the car was found in the possession of the 1st defendant. However, the 2nd defendant, upon enquiry, admitted that he is the owner of the car.
A search was then conducted on the car, and in the car, the following items were found:
(a) a resealable plastic bag containing a white solid;
(b) a plastic tray containing a white solid;
(c) a HK$50 banknote containing traces of white powder;
(d) there is also another resealable plastic bag containing a white solid;
(e) an electronic scale; and
(f) numerous empty resealable plastic bags were also found in the car.
Upon body search, the 1st defendant was found in the possession of two mobile phones and HK$202, whereas $2,008 and two mobile phones were found from the 2nd defendant.
Upon examination by government chemist, the plastic bag in the 1st defendant’s right hand was confirmed to be 12 grammes of solid containing 10.1 grammes of cocaine, whereas the white solid or white powder found inside the vehicle was confirmed to be a total of 3.68 grammes of a solid containing 3.18 grammes of cocaine.
The estimated street value of the drugs found was HK$16,000 odd.
They accept and admit that at the material time now, they possessed the 10.1 grammes of cocaine contained in the 1st defendant’s hand, and the 3.18 grammes of cocaine found in the vehicle were for the purpose of unlawful trafficking. So much so for the first incident.
So far as the second incident involving the 2nd defendant only, the facts are as follows. On 4 April 2022, at around 0050, he was seen by a police officer to be acting in a furtive manner at Hanoi Road in Tsim Sha Tsui. Upon seeing the police, the 2nd defendant quickly walked towards a parking metre where a private car was parked. He squatted down next to the private car and threw a package that he was holding under the private car. He then fled towards the direction of Hart Avenue.
The police gave chase. At the same time, the police also shouted to the 2nd defendant that he was a police officer and demanded the 2nd defendant to stop. The 2nd defendant ignored that and continued to run into an alley near No. 8A Hart Avenue. When police officers arrived at the alley, they searched for the 2nd defendant with torches and saw the defendant squatting at a corner. He was then subdued by police officers. Shortly after, the police took the package under the private car.
The 2nd defendant was arrested, and under caution, he stated that the ‘Coke’ was brought by him for his own consumption. He was taken back to the vehicle, and there and then, they opened the package in the presence of the 2nd defendant, and found that the package in fact contained six resealable plastic bags containing white solids.
Cautioned again, and he stated that it was the ‘Coke’ that he purchased for his own consumption, and he dropped the package under the private car when he saw the police. In police station, he was searched and was found in possession of two mobile phones and HK$282 in cash.
Later on, he was interviewed in the police station, and in the interview, he stated the ‘Coke’ was cocaine and he purchased it from an unknown person on the street on 4 April 2022 at a price of HK$50,000, and he claimed the drugs were all for his own consumption. The six resealable plastic bags were later confirmed to contain a total of 142.7 grammes of a solid containing 110.5 grammes of cocaine.
And the estimated street value of those cocaine was $129,000 odd.
He now accepts and admits that at the material time, he possessed 110.5 grammes of cocaine for the purpose of unlawful trafficking. As one can see from the facts, the 2nd defendant, under caution, claimed that all the drugs in the 3rd count were for his own consumption. So far as the first incident is concerned, under caution here, make no claim about the drugs found on the 1st defendant and inside the vehicle belonged to him.
In the same way, Mr Khosa, on behalf of the 2nd defendant, urged upon the court that some discount be given to the 2nd defendant in view of the fact that some of the drugs were for his own consumption, without mentioning the quantity. He urged upon me that without hearing any evidence, the fact that he was a drug addict and the fact that he was found to be addicted to drugs, or traces of drugs was found on him when he was admitted in the Correctional Services Department, I should give him the benefit that some of the drugs found on both occasions must be for his own consumption.
He referred to the case of Kong Tat Lung, CACC 27/2016. He pointed out to me that the Court of Appeal in that judgement had this to say. In Paragraph 63:
“We have no objection to the defendants in drug trafficking cases being given reductions in sentence on the basis that part of the dangerous drugs is for their own consumption, if those defendants are drug addicts themselves, through the judge exercising his discretion. However, we need to reiterate that in the absence of clear evidence that a substantial part of the dangerous drug in question is for the defendant’s own consumption, the defendant cannot expect the court to give him a reduction of sentence in the region of 10 per cent to 25 per cent in accordance with the principle laid down in Chow Chun Sang. And defendants are not entitled to lodge an appeal on the ground that the court did not give him such a reduction.”
In Paragraph 64 of the judgment:
“In the present case, the trial judge accepted that part of the dangerous drug involved was for the applicant’s own consumption and lowered the sentence by 4 months to one of 8 years. Although the reduction was only about 4 per cent of the starting point, we decide not to interfere with that decision which was made by the judge in the exercise of his discretion.”
The case of Kong is different in the sense that in the case of Kong, he was convicted after trial. In particular, the appellant in Kong has given evidence in the trial. Having heard his evidence at the trial, the trial judge had said that part of the dangerous drugs involved was for the applicant’s own consumption. That conclusion, of course, is one open to the trial judge, and it is properly accepted by him that part of the drugs were for the applicant’s own consumption. It is quite right that the Court of Appeal did not feel that they could interfere with that conclusion.
However, in the case of the 2nd defendant, I have offered to the 2nd defendant that in view of the materials now before me, I am not persuaded that a significant part of the drugs was for his own consumption. I offer him to put more materials before me to substantiate that claim. My offer was turned down.
Of course, I am not suggesting that a Newton Inquiry is always necessary to determine this issue. But I cannot simply accept that from counsel that part of the drugs was for his own consumption, in view of the fact that in both incidents. he was caught in a public place when he was in possession of the drugs. There was no apparatus found in both incidents, which supported the claim of self-consumption.
Moreover, so far as the first incident is concerned, in the vehicle, there was an electronic scale, as well as numerous empty resealable plastic bags. And the quantity of drugs found on the 1st defendant inside the vehicle were separately packed and with different quantity.
So far as the second incident is concerned, there are six resealable plastic bags of cocaine. So as I have said to Mr Khosa, I need some more materials in order to persuade me to come to the conclusion that some of the drugs, either on the 1st or the 2nd incidents, were for his own consumption.
As a result of my invitation being turned down, I do not accept, therefore, part of the drugs was for his own consumption. Hence, I will not give any discount for the 2nd defendant in sentencing him.
So far as the background of both defendants are concerned. Both of them had previous conviction for possession of dangerous drugs. And even worse, the 1st defendant was still under supervision and liable to be recalled. So far as the 1st defendant is concerned, she was released on bail by the Court of First Instance sometime in June this year. 27 March, I should say it was six months before. I am glad that she could return to the same job. I am persuaded that she decided to turn over a new leaf, and I would not take into consideration of her previous conviction of dangerous drugs in sentencing her.
So for as the 2nd defendant, although he had a previous conviction for simple possession, but it was in 2009, again, I would take no notice of it when I come to sentence on him.
Mr Khosa urged upon me that, on behalf of the 2nd defendant, of his family background and the reason for committing all three offences on both incidents. I am not going to speculate as to whether the claim is real or otherwise. However, I noted that the defendant was single, and apparently, he is not living together with father or mother. In any event, the court of appeal has said personal background doesn’t count too much in sentence for trafficking in dangerous drugs, especially when it is a serious case of trafficking.
Dealing with the first incident, it involved two counts. I accept that I should take a combined approach for both counts and treat them as if both of them were being charged with one count of trafficking in the total quantity of the cocaine found. Total quantity in both counts is 13.28 grammes of cocaine. According to the guidelines in Lau Tak Ming, 10 to 15 grammes of cocaine, one is looking at 5 to 8 years. There is no evidence which suggests that the two of you were other than a courier. I would therefore assess your probability at the lowest end of the scale. I therefore took an initial starting point for both of you to be 5 years and 3 months.
There is no aggravating factor, and as I say, I would not take into consideration of your previous conviction in dangerous drugs. On the other hand, there is no mitigating factor except your plea. I will give both of you one-third discount for your plea. So the sentence I pass on both of you is one of 3 years and 6 months for each count, and they are to run concurrently.
Therefore, the sentence I pass on you, the 1st defendant, the total is 3 years and 6 months.
Turning to the 2nd defendant for the second incident. It involved 110.5 grammes of cocaine. It falls within the range of 50 to 200 grammes of cocaine, it is 8 to 12 years. Again, there is no evidence suggesting that your role is other than a courier. In the circumstances, I take an initial starting point of 9 years and 7 months.
However, there is an aggravating factor. You committed the 3rd offence while you were on bail for the first incident. For that, I will enhance the initial starting point by 8 months. So the starting point now comes to 10 years and 3 months. There is no mitigating factor. Especially, I have told you that I will not give you any discount for self-consumption. I will give you one-third discount for your plea.
So the sentence comes down to 6 years and 10 months for the second incident.
I now have to consider whether I should make the sentence to run consecutively, concurrently or partly consecutive and partly concurrent. The two incidents are on two different days, and the second incident is more serious in view of the breach of the bail condition. It is wrong in principle, therefore, to make them to run concurrently. On the other hand, if I make it wholly consecutive, it is unduly harsh.
I decided to make 2 years and 4 months in the 3rd count to run concurrently with the concurrent sentences that I pass on you in the 1st and 2nd counts. The remaining 4 years and 6 months is to run consecutively to the concurrent sentence on the 1st and 2nd charges.
So the total sentence will be one of 8 years for you.
I stand back and look at, 8 years, represent a global starting point of 12 years, which I reckon is a just, fair and balancing starting point for the offences which you have committed on both occasions.
So I repeat for the sake of clarity, for the 1st count and 2nd count, each of you, 3 years and 6 months to run concurrently. And for the 3rd count, the 6 years and 10 months on the 2nd defendant, 2 years and 4 months to run concurrently with the first two counts, but 4 years and 6 months to run consecutive to the first two counts. So the total sentence for the 2nd defendant for the three counts will be one of 8 years in total.