CRIMINAL CASE NO. 213 OF 2012
COURT: The accused, Mr Ho Kwok-yeung, pleaded guilty to two counts of trafficking in a dangerous drug during the proceedings in the Magistrates’ Court. Both counts are contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The subject-matter of the 1st count is 3 kilogrammes of a solid containing 2.48 kilogrammes of cocaine hydrochloride, while that of the 2nd count is 0.1 kilogramme of a solid containing 0.08 kilogramme of cocaine.
The accused is committed to this court for sentencing.
Facts Admitted
On 4 January 2012, the accused was intercepted by police officers when he opened the gate of the premises at Flat H, 12th Floor, Elegant Court, Fanling. Upon search, a bag containing 3 kilogrammes of a solid containing 2.48 kilogrammes of cocaine hydrochloride in the form of three blocks were found on the person of the accused.
When being arrested and cautioned, the accused said, “Ah Sir, I just help someone taking the cocaine here for cooking. I have not received the wage of $30,000.”
Inside the premises, four resealable plastic bags containing 0.1 kilogramme of a solid containing 0.08 kilogramme of cocaine were found. A number of items with traces of cocaine on them were also found in the premises, and they included an electronic heater, metal pot, plate, steaming rack, gloves, sealing machine, two plastic basins, a metal sieve, 11 glass breakers, a plastic card, a calculator, a hammer, a pair of scissors, a paper cutter, two electronic balances, a fan, and air-conditioner filters. 10 boxes and a plastic box containing a total weight of 5.05 kilogrammes of sodium bicarbonate were also found.
All these were confirmed by the forensic scientist to be consistent with the process of making cocaine base (crack) having taken place at the scene.
The dangerous drugs found had an estimated retail value of $2,985,300.
In a video-recorded interview, the accused admitted that he was employed to manufacture cocaine by a person called “Ah Chung”, who taught him how to do it and gave him the money to rent the premises in question.
On 18 or 19 December 2011, on “Ah Chung’s” instructions, he picked up an amount of cocaine and then processed the cocaine as instructed.
Criminal Record
The accused has a clear criminal record.
Mitigation
The accused is aged 47, received education up to Form 2. His parents have passed away and he has five siblings, his youngest sister being mentally retarded, working in a sheltered workshop.
He had worked in various restaurants as a kitchen assistant and was a chef before he became unemployed in December 2011. He married in 2005 and was divorced in 2007. There are no children in the marriage.
Counsel for the accused tells the court that the accused committed the present offences because he needed money, and he was paid $10,000 for a brick of cocaine. Counsel asks the court not to enhance the starting point of the offence laid down in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437 on the ground that manufacturing of cocaine was involved in the present case. Counsel says that the accused has pleaded guilty to two charges which are trafficking offences and it would not be fair for the court to enhance the starting point on this basis. Counsel asks the court to take into account the guilty plea of the accused at the earliest opportunity and to impose concurrent sentences for the two offences.
Sentence
It is sad to see a middle-aged man who has a clear record to have committed such serious offences because of economic reason.
According to the case of Attorney-General v Pedro Nel Rojas [1994] 1 HKC 342, the sentencing tariff for trafficking in heroin applied to trafficking in cocaine. According to the case of R v Lau Tak Ming, for an offence of trafficking in the amount of 50 grammes to 200 grammes of heroin, the starting after trial is 8 to 12 years’ imprisonment. According to HKSAR v Abdallah, trafficking in an amount of 1.2 kilogrammes to 4 kilogrammes of cocaine, the starting point after trial is 23 to 26 years’ imprisonment.
Although the accused admitted to manufacturing cocaine at the premises and forensic evidence confirmed such a process having taken place there, the court bears in mind that the charges he has pleaded guilty to are trafficking offences.
Having considered the submission of the defence counsel and the case of HKSAR v Poon Kam Wing CACC505 of 2011, the court is prepared not to enhance the starting points.
The court therefore adopts the starting points the court has arrived at above following the tariffs in the authorities (24 years 4 months imprisonment for Count 1 and 8 years 9 months imprisonment for Count 2).
Although the accused has a clear record, in such serious offences, this factor does not count towards mitigation.
Giving credit to the accused for his plea of guilty, he is sentenced to 16 years 2 months’ imprisonment for Count 1 and 5 years 10 months’ imprisonment for Count 2.
The total amount of narcotics involved in the present case is 2.56 kilogrammes of cocaine, which carries a term of 16 years 3 months’ imprisonment on a plea of guilty. The court is of the view that in all fairness to the accused, he should not be sentenced to a term of imprisonment longer than when he trafficked all the cocaine together.
Having taken this into consideration as well as the totality principle, the court orders 1 month of the sentence of Count 2 to run consecutively to that of Count 1.
The accused is to serve a total term of 16 years 3 months’ imprisonment.
To avoid any doubt, the starting point for Count 1 is 24 years 4 months’ imprisonment, which I work out at the outset when I talk about the authorities, and for the 2nd count, the starting point is 8 years 9 months’ imprisonment.