CRIMINAL CASE NO. 90 OF 2012
COURT: The 1st defendant has pleaded guilty to trafficking in a dangerous drug, namely 744.60 grammes of a solid containing 688.73 grammes of
cocaine, and the 2nd defendant to trafficking in a dangerous drug, namely 103.84 grammes of a solid containing 93.92 grammes of cocaine.
On 1 March 2011, the 1st defendant entered into a tenancy agreement in respect of Flat A, 25th Floor, Block 3, Prima Villa, Shatin.
At around 6 pm on 8 June 2011, police officers conducted an observation at the corridor of these premises. At about 6.36 pm, they saw the 2nd defendant come out of the premises. Police officers shouted “Police” and approached him. At this moment, the 2nd defendant retreated into the flat and tried to close the wooden door, but the police party managed to push open the door and gain entry to the premises.
The police found both defendants inside the flat. The 2nd defendant was observed to be holding a black document pouch containing, amongst other items, a black plastic bag containing nine tinfoil tealeaf bags and five mobile phones, each with a SIM card.
Upon being cautioned, the 2nd defendant said, “I intend to bring those coke downstairs for someone.” He further explained that the “coke” he referred to meant cocaine, and had been given to him by the 1st defendant. He said he would earn $500 after successfully delivering it.
Police officers searched the premises and discovered the drugs the subject of the charges. They also found $78,000 in cash, large quantities of transparent resealable plastic bags, two sealing machines, plastic gloves with traces of cocaine, one pair of scissors with traces of cocaine, three electronic scales with traces of cocaine, five mobile phones, each with a SIM card, one microwave oven containing 0.49 grammes of a powder containing 0.45 grammes of cocaine, and 88 paper boxes of powder of sodium bicarbonate.
It was subsequently discovered that air-conditioner filters and the blades of fans were contaminated with cocaine.
In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence.
The first is that for sentencing purposes, cocaine is to be treated as the same as heroin. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus the quantity for which the 1st defendant must be sentenced is 688.73 grammes, and the 2nd defendant, 493.92 grammes.
The third guideline laid down by the Court of Appeal is that the sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming& Ors [1990] 2 HKLR 370 and HKSAR v Abdallah[2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts between 600 and 1200 grammes, the sentencing range should be from 20 to 23 years’ imprisonment, and for amounts between 50 and 200 grammes, the sentencing range should be from 8 to 12 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation. But notwithstanding this, the sentencing tariffs play a very important role, for two main reasons. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or some other role. Whatever the role played by the trafficker, the sentence would generally be the same. See HKSAR v Manalo[2001] 1 HKLRD 557 at page 560 G-H.
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. See Secretary for Justice v Chan Ka Wah[2008] 4 HKLRD 904 at 908, paragraph 22.
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines, and that whilst the sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands. See Chan Ka Wah at page 908, paragraph 22.
No such exceptional circumstances are present in this case for either defendant. Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, and any previous involvement he may have had in drug offences. See HKSAR v Abdallah[2009] 2 HKLRD 437.
The 1st defendant is 36 years of age and has two prior convictions for drug trafficking, the last of which was in June 2006, and for which he was sentenced by the District Court to 44 months’ imprisonment. The quantity of drugs in which the 1st defendant was trafficking is within the 20 to 23 years’ imprisonment band which covers trafficking in amounts between 600 and 1200 grammes.
The 1st defendant has all the hallmarks of a professional trafficker who, over time, has increased the scale of his trafficking. I find no basis for extending to him any leniency.
As the quantity is 688.73 grammes, I adopt 20 years as my starting point. I discount that sentence by one‑third to allow for the plea of guilty.
The resulting sentence is 13 years and 4 months, and that is the sentence I impose.
The 2nd defendant, however, is in a different category. He is just 22 years of age and only has one prior conviction for possession of ketamine which occurred at a time when he had lost his employment and was depressed. He has written a letter to the court setting out in some detail his background, and expressing great remorse for his conduct and for the impact it has had on those he loves. I accept the genuineness of his remorse.
In respect of the 2nd defendant, the quantity of drugs in which he trafficked is within 8 to 12 years’ imprisonment band which covers trafficking in amounts between 50 and 200 grammes.
An appropriate starting point for the 2nd defendant would normally be around 9 years’ imprisonment. However, in view of the remorse he has shown, the support he has received from his family, and the other matters mentioned by him in his letter to me, I am inclined to extend him leniency.
I adopt a starting point of 8 years and 3 months. I discount that sentence by one-third to allow for the plea of guilty.
The resulting sentence is 5 years and 6 months, and that is the sentence I impose.
Would both defendants stand up? For the reasons which you have just heard, I sentence you, the 1st defendant, to 13 years 4 months’ imprisonment, and you, the 2nd defendant, to 5 years 6 months’ imprisonment.
To you, the 1st defendant, there is little I can say. You have embarked upon a career of drug trafficking which has no doubt been a source of easy and substantial profits for you. But now you must pay the price, and it is a heavy one. By the time you come out of prison, you will be in your 40s. It is a matter for you then whether you wish to pursue this path and end up losing your youth in gaol, or whether you wish to start a new life for yourself. Only you can make that decision.
To the 2nd defendant I would say this. You have made a grave mistake, and now you must pay the price for it. But you should consider yourself quite fortunate, and so should, in fact, the 1st defendant. You, the 1st defendant, are lucky you have not been convicted of manufacturing a dangerous drug, for which you would have been sentenced to a far greater sentence, and you, the 2nd defendant, are lucky that the prosecution accepted your plea to the 2nd count, rather than put you to trial on the 1st count, exposing you to a risk of the same sentence that has been imposed on the 1st defendant.
So to the 2nd defendant, you have also benefited from the leniency which I have extended to you. Courts in future will not extend you any further leniency. If you are serious about your intention to turn your life around, then make use of the time you are in gaol to acquire some skills or learning which will assist you in gaining employment on your release.
Your release will come, in fact, quite quickly if you are of good behaviour in gaol, as the Commissioner for Correctional Services has the power to release you earlier if you are in fact of good behaviour.
You have the support of your family. Value that, and listen to what they have to say.