COURT: The 1st defendant has pleaded guilty to Count 2 of the indictment, which is for trafficking in dangerous drugs together with the 2nd defendant on 30 October 2009, namely 1.98 kilogrammes of a mixture containing 1.2 kilogrammes of cocaine.
The 2nd defendant has pleaded guilty to two counts on the indictment. The first count is for trafficking in a dangerous drug, namely 12.61 kilogrammes of a mixture containing 8.26 kilogrammes of cocaine and he also pleaded guilty to trafficking in the second count, together with the 1st accused, namely 1.98 kilogrammes of a mixture containing 1.2 kilogrammes of cocaine.
The facts of the case are that there was operating in Cheung Sha Wan, Kowloon, a commercial mini storage business and a renter of any particular storage unit within this business is given an access card. Once access is granted, then the person can go to their personal storage unit, which is often locked with a personal padlock. This case concerns two storage units within that commercial enterprise, numbered R003 and R053A.
The facts admitted show that the 1st and 2nd defendant met on 20 October 2009 and the 2nd defendant then drove both of them to the storage units. They both went to near storage unit R003 and awaited delivery of several boxes containing dangerous drugs. The boxes arrived and after the workers left, both defendants then opened the boxes and retrieved about 10 bags of block-shaped goods wrapped in yellow patterned paper. These were locked in unit R003. Then both defendants left.
About 10 days later, both the defendants again, with the 2nd defendant driving, went to the storage premises. The 2nd defendant gave the 1st defendant the access card and two keys, one key for R003 and the other key for R053A. The 2nd defendant also opened the trunk of his car and gave the 1st defendant a pink plastic bag to carry the drugs in. 1st defendant then went into the storage premises and opened R053A with a key after he had gone to R003 and took two items of dangerous drugs from there and placed the two items into R053A.
After locking up both storage boxes, the 1st defendant left the premises to return to the 2nd defendant’s car when he was intercepted by the police. 2nd defendant was also intercepted in his car and, upon a search on his person, in a carrier bag was found two keys and a smart card for access to storage units P138A and P138B. The police did not find any dangerous drugs in those two storage units. Also found on the defendant’s person was $124,970 in cash and five mobile phones.
The combined value of the dangerous drugs seized by the police were to a total of value of HK$11.71 million.
The storage unit R053A after investigation by the police, was found to have been opened by a person using a false British passport. The police searched the 2nd defendant’s premises and found an official rental receipt for the storage unit R053A for the period of 1 January 2009 to 28 February 2009. Under caution the 2nd defendant admitted that he was responsible for renting the storage units.
The 1st defendant has a clear record. The 2nd defendant has a traffic offence and then in 2012 he was sentenced to 2 years imprisonment in the District Court for dealing with property known or believed to represent the proceeds of an indictable offence. So it is true that for both defendants, this is going to be the most serious offence that they have faced so far. The 1st defendant is now aged 23 and at the time of the offence, I am told by Mr McGowan that he was about 19 and a half. The 2nd defendant is now aged 35.
Dealing with each defendant in turn, the 1st defendant at the time of the offence was, as I have said, only 19 and a half years old and it is correct that he has indicated remorse by his plea and also by the fact that he was willing to be a prosecution witness against the 2nd defendant. As Mr McGowan pointed out, the letter informing the Department of Justice that he was willing to give a non-prejudicial statement against the 2nd defendant was in May of this year and it was not until till 26 August 2013 that the reply came from the Department of Justice that the prosecution will accept the 1st defendant’s offer and on 10 September, the 2nd defendant indicated he would plead guilty at the pre-trial review.
I am told that the 2nd defendant had already decided to plead guilty before knowing anything about 1st defendant’s offer to give evidence against him, but nevertheless, it was a strong indication of the 1st defendant’s remorse in this matter.
It is clear from the letters that I have read in his support, particularly from the mother of the 1st defendant, that the 1st defendant is a good son and it is also clear that the 1st defendant had not wasted his time in prison. During these few years he has managed to take some exams to better himself.
It is, of course, also an indication of how well loved the 1st defendant is that he has his family and friends here in support of him, but this is a very horrific offence to be involved in. The damage that these drugs will do to our society in Hong Kong is almost unimaginable; families destroyed and children suffer. And that is why the courts have a duty to protect society against drug traffickers. It is a constant and unremitting battle against drug traffickers that the police have to wage constantly every day in Hong Kong.
The courts, therefore, have recognised this and have laid down sentencing guidelines for trafficking in dangerous drugs and in the case of cocaine it has also, in the recent of Abdallah [2009] 2 HKC 197, guidelines for trafficking in cocaine for 600 grammes and above. In the case of the 1st defendant, in relation to Count 2, the amount is 1.2 kilogrammes of cocaine, which, according to the guidelines in Abdallah, will call for a starting point of 23 years imprisonment.
The next question I should consider is how much reduction I should give the 1st defendant. Mr McGowan has submitted that it should be more than 40 per cent because the 1st defendant has not only given a non-prejudicial statement, he has also expressed a sincere willingness to be a prosecution witness and just because the 2nd defendant went ahead and pleaded guilty, he should not be deprived of an appropriate discount, because there is no evidence that the 1st defendant would not have given evidence.
It is clear that from the facts and the cases that Mr McGowan have brought to my attention, that the courts generally give a discount in similar cases, both where there is an expressed willingness to give evidence and where there has been substantial information given to the police as an informant, that the amount of discount ranges between 40 to 45 per cent, unless the person was of the super grass category. So having considered the facts in this case, the cases that have been cited, the mitigation, I have decided to reduce the 23 years imprisonment to one of 12 years.
So the defendant goes to prison for 12 years.
Now, in relation to the 2nd defendant, he has pleaded guilty to two counts on the indictment. He is much older than the 1st defendant and he has had a very lucky life compared to the 1st defendant. It is a shame that a young man like him does not take advantage of all the blessings that God has given him in the form of his parents, his wife, his friends and relatives, and chose out of greed to commit these very serious offences.
The 2nd defendant has pleaded guilty to the first count, which is for drugs for cocaine whose weight is 8.26 kilogrammes. In the same premises in another box were found the drugs, 1.2 kilogrammes, which is the subject matter of the second count and if one adds up the total weight of the cocaine found by the police, it measures up to 9.46 kilogrammes and, according to the case of Abdallah, the sentence would fall within the 4,000 to 15,000 grammes guidelines, which would, merit a term of 26 to 30 years imprisonment.
The total amount of 8.26 kilogrammes in the first count, I consider that an appropriate starting point will be 27 and a half years imprisonment.
INTERPRETER: Sorry, my Lady, 20?
COURT: 27 and a half years.
INTERPRETER: Thank you.
COURT: With a discount of one-third, because of the defendant’s plea, that would bring it down to 18 years and 4 months. In the second count, similarly, as in the case of the 1st defendant, the starting point would be 23 years imprisonment. With a plea, it is reduced to 15 years and 4 months.
I have to consider the totality principle. So having considered the totality principle, I find I will order that the sentence in the second count be served concurrently with the sentence in the first count, thus giving a total of 18 years and 4 months imprisonment.