COURT: The defendant, Valoi Rodrigues Jeremias, was charged with one count of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
On the day in question, the defendant was seen by police officers entering Flat B on the 16th Floor of New Lucky House in Jordan Road (“the Flat”) at around 7.24 pm. He left the Flat around eight minutes later at 7.32 pm. The police intercepted him at the staircase on the 16th Floor. The defendant was holding two mobile phones at the time.
Upon search of his person, from the right front pocket, police found two tissue papers each containing a transparent resealable bag. One of the bags contained 15.1 grammes of crystalline solid containing 14.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. The other bag contained 50 grammes of solid, containing 32.7 grammes of cocaine.
From the defendant’s right rear pocket, cash of HK$18,500 was found. From his left front pocket, police found a bunch of four keys, one of which was for opening the metal gate of Room E of the Flat, and another was for opening the door to a room marked ‘E6’ of Room E of the Flat.
During a video-recorded interview conducted subsequently, the defendant claimed the two mobile phones, the cash found on him, and the clothes he was wearing, they were his, and the money was to be used for buying things.
In one of the mobile phones seized from the defendant, police found photos showing the weight of some white substance, contained either in a bowl or a plastic bag, being placed on a digital scale.
The estimated street value of ‘Ice’ was HK$571 per gramme. For the cocaine, it was HK$1,075 per gramme in powder form and HK$1,194 per gramme in crack form. The estimated street value of the dangerous drugs together was between HK$62,372 and HK$68,322.
The defendant admitted he was in possession of all the dangerous drugs seized on him for the purpose of unlawful trafficking.
Background and Mitigation
The defendant was born in August 1983 in Mozambique. He is now 43 years of age. He is a Form 8 recognizance holder. The defendant claimed to have reached Form 6 level in education.
Defence counsel, Mr James Sherry, in mitigation submitted that the defendant was a drug addict or drug abuser himself, and as much as 25 per cent of the cocaine and 50 per cent of the ‘Ice’ found on his person was intended for his own use. The rest was for sale to others. As a Form 8 holder, the defendant could not work, so he resorted to trafficking dangerous drugs for others to support his drug habit. Mr Sherry pointed to the urine test conducted on the defendant upon his admission to gaol custody to prove that the defendant was a drug dependent.
Upon this court indicating that it would not accept the bare assertion without evidence when the claim is as much as a quarter of the cocaine and half of the ‘Ice’ found on him was intended for his own consumption, and that the defendant was leaving home with the dangerous drugs instead of going home, counsel then took instructions and the defendant decided not to give evidence to support this claim.
With reference to the six steps in the case of HKSAR v Herry Jane Yusuph, reported in [2021] 1 HKLRD 290, Mr Sherry submitted the role of the defendant was that of a trafficker and abuser intending to use 25 per cent of the cocaine and 50 per cent of the ‘Ice’ seized for his own use. Mr Sherry suggested a starting point of 8 years and 3 months after adopting the ratio test.
As for aggravating factor, Mr Sherry accepted the fact that the defendant was a Form 8 holder amounts to an aggravating factor. The only mitigating factor is the defendant’s timely plea.
Consideration for the Sentence
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence upon indictment is liable to a fine of $5 million and to imprisonment for life. I will consider the appropriate sentence by incorporating the seven-step approach stated in the case of HKSAR v Islam S M Majharul, reported in [2020] 3 HKLRD 146, into the six-step approach in Herry Jane Yusuph. Two different types of dangerous drugs are involved and I will adopt the combined approach.
Step One
Of the two dangerous drugs, the cocaine was of a larger quantity, so I will use the cocaine as the base drug.
Step Two
The trafficking of 32.7 grammes of cocaine falls into the 10 to 50 grammes band in the case of HKSAR v Huang Ruifang (No. 3), reported in [2025] 2 HKLRD 138, with a starting point of 5 to 8 years. On an arithmetic calculation, this quantity of cocaine warrants a starting point of 6 years and 8 months.
Step Three
I have to decide how much of this starting point of 6 years and 8 months should be increased to allow for the quantity of ‘Ice’. The trafficking of 14.5 grammes of ‘Ice’ falls into the 10 to 70 grammes band in Huang Ruifang (No. 3) with a starting point between 7 to 11 years. On an arithmetic calculation, this quantity of ‘Ice’ would yield a starting point of 7 years and 3 months. Based on the proportion of the two different drugs, a ratio test shows the sentence would be about 8 years and 3 months.
On the Admitted Facts, the defendant was a courier, so I am of the view that a starting point of 8 years and 3 months is appropriate before considering whether a substantial part of the dangerous drug was for the defendant’s own consumption.
While the urine test established that the defendant was a drug abuser of both ‘Ice’ and cocaine, I am not satisfied on a balance of probabilities on a bare assertion from the defence that a significant portion of either the cocaine or the ‘Ice’ was intended for the defendant’s use, so the starting point is one of 8 years and 3 months.
Step 4
There are two aggravating factors here. The first is that two different types of drugs were involved, which could cater for a wider market of drug abusers. This is the case of HKSAR v Yim Hung Lui Ricky (unreported, CACC 266/2011, 13 February 2012). I am of the view that an enhancement of 3 months is appropriate.
The second is that the defendant is a Form 8 recognizance holder. An enhancement is required to “mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city”
Further, “The enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crimes.”
That is in the case of HKSAR v Gulzar, reported in [2020] 3 HKLRD 805. I am of the view that an enhancement of 9 months is appropriate here, so the total enhancement is 12 months. With the enhancement of 12 months, the notional sentence is 9 years and 3 months.
Step Five
The defendant tendered a timely plea and is entitled to a full one-third discount. I do not see any other ground for a further discount. With the discount, the sentence is 6 years and 2 months.
Step Six
I am of the view that a sentence of 6 years and 2 months is not unfair or unjustly crushing or oppressive.
Actual Sentence
For the trafficking in dangerous drugs, the defendant is sentenced to 6 years and 2 months’ imprisonment.
