The defendant, Choi Wing-ka, was convicted after trial of one count of trafficking in a dangerous drug on 23 October 2023, that is last Friday. The jury, by a unanimous verdict, found that the defendant on 6 August 2020 at Room 29, 7th Floor, Ming Sang Industrial Building, No. 21 Hing Yip Street, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 2,489 grammes of a solid containing 2,119 grammes of cocaine.
The Facts
In the evening of 6 August 2020, a team of plainclothes police officers was conducting an anti-dangerous drugs operation. They were to execute a search warrant at the above address as stated in the indictment which was a mini storage warehouse.
At 6.35 pm, they laid an ambush near room 29 at the 7th floor. At 6.40 pm, Sergeant 54367 (PW1) demanded the people inside the room to open the door but in vain. After the warning, he instructed two police officers to use break-in equipment to open the door by force and got into the room. The defendant was the only person in the room and she was standing next to one stack of two carton boxes wearing a pair of surgical gloves on her hands at the time.
On the top of the upper carton box, there was a vacuum sealed packet (P2) containing white solids suspected to be dangerous drugs and there were 20 more carton boxes inside the room. Later during the search of the room, the police found another carton box and inside another nine vacuum sealed packets (P3 to P5) containing white solids also suspected to be dangerous drugs. Those nine vacuum sealed packets were found inside nine gumboots (P6) which were placed underneath two pillows (P8) in a separate carton box, (P7).
The defendant was later arrested for the offence of trafficking in dangerous drugs and she was cautioned. She was later brought back to the Kwun Tong Police Station.
The suspected dangerous drugs were later seized by the police and sent to the government laboratory for analysis and according to the government chemist certificate (P36), the suspected dangerous drugs were confirmed to be cocaine with an estimated street value of about HK$4.4 million for cocaine powder or HK$8.5 million for crack cocaine.
The defendant testified in the trial and she told the jury that she has been working as a part-time warehouse worker in the room before her arrest and she has no knowledge of the nature of the substance of the one sealed packet that was found on the carton box next to her. She said that she was asked to take out the packet from the carton box and she was told by her boss that it was insecticide powder and she did not even know the existence of the nine other sealed packets that were hidden inside the gumboots in another carton box. By their unanimous verdict, the jury must have rejected the explanation.
Following the conviction, the jury must have accepted that she was knowingly in possession of all the dangerous drugs seized in the room for the purpose of trafficking and have rejected her claim of lack of knowledge of the nature and/or the existence of the dangerous drugs.
Antecedents
According to the antecedent statements, the defendant was born in Hong Kong. She is now 38. She was educated up to Form 4 level. In the trial, the defendant said that before her arrest, she has been working as a beautician for many years, earning an average income between $10,000 and $20,000 depending on the commission. She lost her job because of the pandemic in 2020 as the government ordered the beauty salons to close their business.
In 2002, the defendant was convicted of one count of possession of dangerous drugs for which she was sentenced to probation for 18 months. That is her only criminal record before this case.
Mitigation
Mr Hui, counsel for the defendant, has submitted a number of mitigation letters written by the defendant’s mother, aunt, godfather, and a younger sister for the consideration of the court last Friday. Mr Hui acknowledged that the case is serious and submitted that given the large quantity of cocaine involved, that is 3,119 grammes and the sentencing tariff of the cocaine, the starting point in this case is 23 years and 11 months’ imprisonment.
Mr Hui submitted that the role played by the defendant was equivalent to a courier or a storekeeper, which is in the lower end of the criminality of the drug trafficking. He submitted that in such circumstances, the court could simply adopt the tariff as they are without any enhancement because of the role played by the defendant.
Finally, Mr Hui said that during the three years of her remand in prison waiting for the trial, the defendant did not give up herself and she continued to study different courses on nutrition and pain relief, etc, indicating that she is not inherently of a bad character.
The sentence was adjourned from last Friday to Monday for my consideration. Today, just before the hearing, Mr Hui further submitted a letter written by the defendant, asking for leniency.
Consideration
In sentencing the defendant, I have taken into consideration the nature of and the quantity of the drugs. The tariffs as set down in the case HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, the sentencing consideration as set out in the case HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the facts of the case, all the matters urged on the defendant’s behalf, and all the letters placed before me by Mr Hui.
The offence of trafficking in a dangerous drug is of course a very serious offence which carries a maximum sentence of life imprisonment and a fine of HK$5 million. Those who are convicted of the offence will be severely punished by the court.
In sentencing, I followed the steps of sentencing consideration in Herry Jane Yusuph. The first step is to identify the relevant guideline bracket of the drug involved. The second step is to identify the role of the defendant. And the third step is to identify where in the band the defendant stands. The court may go outside the band depending on the circumstances of the commission of the offence and the role of the defendant.
The defendant pleaded not guilty and was convicted by a jury after trial, therefore there will be no discount on account of her plea and remorse. For the first step, Mr Hui submitted that given the quantity of the cocaine involved, the defendant’s sentence is 23 years 11 months after applying the tariff. According to the Court of Appeal, sentencing tariff for trafficking in cocaine is aligned to the guidelines for trafficking in heroin, see R v Lau Tak Ming and Others [1990] 2 HKLR 370.
The guideline, however, was only up to 600 grammes. Later, in Abdallah Anwar Abbas, the Court of Appeal supplemented the sentencing guidelines by providing sentencing guidance for trafficking in amounts above 600 grammes.
The present case falls into bracket 2 of the guideline and that is from 1,200 to 4,000 grammes, the sentence is between 23 and 26 years’ imprisonment. According to arithmetical calculation, the proper sentence for 2,119 grammes of cocaine however should be 23 years and 11.8 months. So to round it up, it should actually be 24 years’ imprisonment. But be that as it may, I am prepared to exercise my discretion to adopt the figure that is 23 years and 11 months as suggested by the defence.
As to the role of the defendant, there is no evidence of actual trafficking in the sense that she was actually dealing in the cocaine to the others, to be fair to her in all the circumstances, I am prepared to treat the defendant on the basis of the role of the storekeeper without any further enhancement. Given the role of the defendant was that of a storekeeper, in my judgment an initial starting point after trial of 23 years and 11 months’ imprisonment is appropriate.
The defendant has one previous conviction record of possession of dangerous drugs but I am prepared to treat the defendant as a person of clear record, as her only record was already 21 years ago and was a spent conviction and there is no other aggravating factor.
Now although Mr Hui did not explain why the defendant came to be involved in drug trafficking, I have no doubt she was only tempted to commit the offence due to economic pressure but the court can never accept economic reason for committing crime. And in the sentencing of serious offences such as the present, the Court of Appeal has repeatedly emphasised that family circumstances virtually play no part in mitigation.
I have read all the mitigation letters written for the defendant, including the one written and submitted by the defendant herself and I am not going to refer to the contents of the letter. In fact, what the defendant has said in her letter was already covered by Mr Hui in his mitigation or referred to me by the other mitigation letters. I accept that the commission of the present offence was out of her character and the defendant is a filial and responsible daughter and a caring elder sister who all along has been supporting the family and the younger sister for all these years.
The present conviction must be a shock and blow to all the family members and friends, especially for the mother who has been looked after by the defendant. It is indeed sad that the present conviction means the defendant would probably be unable to take care of her aged old mother before she was released, but she really should think twice before taking part in the offence. As a mature adult, she took the risk and was caught and now she had only herself to blame.
Mr Hui was unable to put forward any other mitigating factor and I can identify no mitigating factor valid for my consideration. In my judgment, the sentence of 23 years and 11 months’ imprisonment is a fair, just, and balanced sentence in all the circumstances of the offence and also the defendant.
Sentence
For the reasons above, Defendant, I sentence you to 23 years and 11 months’ imprisonment.