CRIMINAL CASE NO. 78 OF 2011
COURT: The two defendants were jointly charged with one count of trafficking in a dangerous drug, that is Count 1, and each of them was facing another count of possession of a dangerous drug, Count 2 and Count 3. All these counts related to the drug of cocaine.
Both defendants pleaded guilty to the trafficking and possession offences respectively. They also admitted the facts.
To put very simply, what happened was that, on the material day, the police officers, while on duty for some other operation, happened to witness D1 receiving a brief case in a café in Central and he later handed over the same briefcase to D2 before trying to board a private car together.
The officers approached and stopped them for investigation. They found out that the briefcase had contained the cocaine as referred to in the 1st count. Furthermore, a packet of cocaine was found inside D2’s car and three packets of cocaine were found on the person of D1.
D1 is about 38 now, he is a Columbian national. He has no criminal record in Hong Kong and he has two sons in Columbia.
D2 is now 32 years of age and he was born in Hong Kong. He has a previous record of possession of drugs for which he was fined.
Both counsel had addressed the court, in mitigation, all that could have been said for these two defendants. They had described the defendant’s background, the work pattern and personal circumstances in detail. I do not see the need to recite the information again here.
Mr Tolliday-Wright for D1 had argued one point in particular. He said that D1 should be entitled to an overall 50 per cent discount for his guilty plea and for his assistance to the police by giving the statement, plus his willingness to testify if there were to be a trial against D2.
Needless to say this is a serious offence, as the amount involved is significant. One might rightly also suspect an international element at work in the background. But despite the suspicious circumstances I have to accept, focusing on the act between D1 and D2 being the basis of the charge, it would not be right to treat the case as one with an international element.
Having considered the circumstances and having considered the relevant authorities of Lau Tak Ming and in particular the Abbas case, CACC304/2008, I shall adopt the starting point of 21 years for Count 1 and 9 months each for Count 2 and 3.
One-third discount will be given making the terms to be 14 years, 6 months and 6 months respectively.
Now, I have given serious consideration to the matters raised by Mr Tolliday-Wright. I accept that D1 has given a useful statement to the police which the prosecution is prepared to rely on in the scheduled trial. But I cannot say it is the kind of assistance that merits the highest 50 per cent discount normally reserved for those whose information led to, say, further arrests and by whose evidence the prosecution can succeed in getting certain convictions.
Frankly, as I see it, the prosecution case against D2, even without the additional D1’s statement, is already rather strong against him, yet it does not appear that D2 had really been thinking of a guilty plea on his own as Ms Panesar had, just before the trial, even made a severance application.
So I believe D1’s statement was helpful in the sense that it caused D2 to pause to rethink about his position. The result is that much of the court’s time is saved.
For D1’s assistance and willingness to testify, although the full 50 per cent discount cannot be justified, I would reduce the 14 years by 1½ years for the 1st defendant. That will mean I have given D1 an overall reduction of about 40 per cent. I believe that fairly reflects his plea and assistance intended and rendered.
For D2, despite Ms Panesar’s request, I am unable to grant any reduction beyond the usual one-third.
Hence the sentences for the defendants are as follows. For D1, 12½ years for Count 1, 6 months for Count 3, they are to be served concurrently. So 12½ years in total.
For D2, 14 years for Count 1, 6 months for Count 2, to serve concurrently also. So 14 years in total.
Please refer to CACC440/2011 for the relevant appeal(s) to the Court of Appeal.