CRIMINAL CASE NO. 381 OF 2009
COURT: You have been convicted on your own plea of trafficking in just over 1,900 grammes of cocaine. You have agreed a very detailed set of facts which can be summarised briefly as follows.
On 14 April last year a parcel was dispatched from Buenos Aires in Argentina to Hong Kong by courier. It was to travel via Paris but when it arrived at Leipzig in Germany, it was processed by the courier company. After being X-rayed irregularities were found in the parcel which led to a drug wipe test being performed. That showed positive for cocaine which, subsequent investigations, revealed was secreted inside six photograph frames.
The decision was made to allow the parcel to proceed to Hong Kong and for a controlled delivery to be carried out. The parcel was addressed to a Mr Choi Wai-keung whose address was shown in Yuen Long. On 20 April two members of the Hong Kong Customs & Excise did a controlled attempt to deliver the parcel. They were unable to do so. Various messages were left.
Later that same day a second controlled delivery was conducted and when the two Customs officers arrived at the address given for Choi Wai-keung, they called a mobile telephone number. You then arrived; identified yourself as Choi Wai-keung and produced an identity card in that name. You took delivery of the parcel pretending to be Choi Wai‑keung and signed an acknowledgment of receipt.
You were then arrested and when you had been arrested you said that you had taken delivery of the parcel at the request of one Ah Kam who would pay you $50,000 for doing so. In a subsequent interview you indicated that you had committed this offence because you were indebted to a finance company and that Ah Kam had offered you $50,000 simply to receive the parcel.
You now accept that you know that the parcel contained the dangerous drugs which were found inside the photograph frames. You explained that Choi Wai-keung was your landlord and that you had taken his identity card and used his name without his knowledge or consent.
You accept also that the quantity of the cocaine which was contained in the parcel had a market retail value in excess of HK$2 million. It is no exaggeration to describe that as a very substantial quantity of drugs.
I see from your criminal record, which really shows a low level of criminality over a sustained period by you, that you have been convicted of possession of dangerous drugs. And once of smoking or injecting. You have no previous convictions for trafficking and you say, in your antecedence statement, that you are not drug dependent.
Notwithstanding that, you were prepared to involve yourself in the importation from overseas of a very substantial quantity of drugs which would be introduced into Hong Kong society. You did that simply out of your own avarice. The amount of misery that this quantity of drugs would cause within the community is not to be underestimated.
I have no doubt that you have been told that there is a tariff laid down by the Court of Appeal for trafficking in heroin or cocaine. That tariff is contained in two cases, those of Lau Tak Ming and of Abbas. Abbas is the more recent case and relates to larger quantities than were considered in Lau Tak Ming. It affectively supplemented the earlier case.
In Abbas the Court of Appeal said at paragraph 21:
“It has long been accepted that the International element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, whereas local offences confined to trafficking in Hong Kong will usually result in lower starting points for about the same quantity of heroin or cocaine. As a result, therefore, it is not surprising to find that generally a starting point of 24 or 25 years was applied in cases of trafficking with an International element.”
At paragraph 41 of that judgment the court set out the bands which were applicable in respect of the quantities of narcotic which it considered appropriate. The quantity in which you trafficked, a little over 1,900 grammes, falls into the second band that ranges from 1,200 to 4,000 grammes and provides between 23 and 26 years imprisonment after trial.
It seems to me that the basic starting point that I should take for this quantity after trial is one of 24 years imprisonment.
The court then went on to say:
“It will be an aggravating factor calling for the enhancement of the starting point where, for example: 1) an international element is involved.”
The court then sets out three other aggravating features which are not applicable in your case.
At paragraph 43 the court said:
“We do not envisage that the enhancement for any of the reasons which we have itemised for amounts above 1 kilogramme will be less than 2 years imprisonment in addition to the new guideline tariffs we have set out.”
Your offence was committed on 20 April 2009 and the judgment in Abbas was given on 12 March 2009. It consequently applies to this offence.
It seems to me that, in the circumstances, I should enhance the starting point by 2 years to 26 years imprisonment. You are, by virtue of your plea of guilty, entitled under current sentencing practice to a one-third reduction. That reduces the sentence on a plea of guilty to 17 years and 4 months’ imprisonment.
I have considered everything else that your counsel has said on your behalf this morning but there is nothing which, in my judgment, entitles you to any further discount beyond the discount already indicated.
In the circumstances, you are to serve a period of 17 years and 4 months’ imprisonment.