The particulars of offence of Count 1 is that the defendant on the 5th day of January 2014 at Ground Floor, Chung Nam Mansion, No 2 to 4 Mok Cheong Street, To Kwa Wan, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 4.41 grammes of a solid containing 3.10 grammes of cocaine.
The second count alleges that the defendant on the same day at 9th Floor, Chung Nam Mansion, No 2 to 4 Mok Cheong Street, To Kwa Wan, Kowloon, in Hong Kong, together with Yan Shu-wing, unlawfully trafficked in a dangerous drug, namely 94.92 grammes of a powder and 206.8.2 grammes of a solid containing 210.19 grammes of cocaine.
The defendant pleads guilty to Count 1, but pleads not guilty to Count 2. After trial, he is convicted unanimously by the jury of Count 2.
Admitted facts for Count 1
At about 1715 hours on 5 January 2014, the defendant was seen by police officers leaving the premises at Flat B, 9th Floor, 2 to 4 Mok Cheong Street, To Kwa Wan, Kowloon. These premises will be referred to as “Flat 9B”.
The defendant took the lift to ground floor of the building. He was intercepted and searched at the ground floor, and 20 packets of dangerous drug contained in two packets were found concealed between the defendant’s waist and the waistband of his underpants.
These dangerous drugs were later confirmed to be 4.41 grammes of a solid containing 3.10 grammes of cocaine, with an estimated street retail value of $5,768 on 5 January 2014.
On being arrested and cautioned, the defendant said, “(My) friend told me to go up to the doorway of (Flat) B on 9th Floor to pick up two packets of coke and to bring them to him when I would be so informed. I just earn a few granules of coke for consumption(.)”
When asked to clarify what he meant by “Coke”, the defendant said, “Stop kidding me. It’s simply cocaine.”
The defendant produced keys from the bag he was carrying and said they were keys to the premises on the 9th floor and he could show the police officers the way there.
Evidence in the trial of Count 2
During the trial of Count 2, witnesses, including the defendant himself, give evidence relating to Count 1, which is similar to the facts admitted by the defendant during the plea.
There is evidence from the prosecution that, in addition to the keys from the bag of the defendant, a black-handled key was also found inside the left trouser pocket of the defendant.
The defendant was taken up to Flat 9B by the police officers by lift. Flat 9B was subdivided into several rooms. With the keys from the defendant’s bag, the police officers opened the lock of the metal door of Flat 9B and the wooden door of Room B, which was one of the rooms inside the flat. Male Yan Shu-wing was inside Room B at that time.
With the black-handled key found from the defendant, the police officers opened the lock of a black suitcase inside the room. Inside the suitcase, there were 4 transparent plastic boxes containing, respectively, 4 transparent resealable plastic bags, 7 transparent plastic bags, 75 transparent plastic bags and 80 transparent plastic bags.
Inside these transparent plastic bags, there were a total of 94.92 grammes of a powder and 216.82 grammes of a solid containing 210.19 grammes of cocaine. Inside the black suitcase, there were also two electronic scales, five beakers, a suction tube, a test-tube, two lighters, a bottle of vanilla flavouring, a box of baking soda and an alcohol stove.
A vacuum cleaner was also found inside Room B and the inner part of it was found to have traces of cocaine.
There is evidence from a government chemist that the findings of the paraphernalia and chemicals inside Room B is consistent with a process of making cocaine base (ie crack cocaine) having taken place at the scene.
Another government chemist opines that the transparent plastic bag used to contain the dangerous drug found on the defendant’s person and 20 of the transparent resealable plastic bags of the same size containing dangerous drug found inside the black suitcase had come from the same source, because of the identical extrusion marks on them.
As pointed out above, the defendant gives evidence which is similar to the facts he admitted in the guilty plea of Count 1, saying that he purchased the dangerous drug in Count 1 from Yan Shu-wing. With prior arrangements with Yan, he obtained the keys to the iron door of Flat 9B from the mailbox of the flat on ground floor. He collected the dangerous drug stuck at the back of the iron door of Flat B with adhesive tape. He used this method to purchase dangerous drug from Yan for a cheaper price.
He was intercepted and searched by the police officer after obtaining the dangerous drug. He emphasised that the black-handled key was not found on him. He had not entered Room B and did not know there was a black suitcase inside Room B. He certainly did not know that there were dangerous drugs and paraphernalia inside the suitcase.
When the suitcase was opened by the police officers, he saw that the black-handled key was inside the zipper bag of the suitcase, chained together with another similar key.
Criminal record
The defendant has one previous conviction of possession of a dangerous drug, for which he was sentenced to 4 months’ imprisonment, suspended for 12 months, and fined $500 on 1 August 2013.
Mitigation
The defendant is aged 32 years, a widower; has a daughter aged 15, who is a student.
According to the defence counsel, the defendant dropped out from school after completing Form 3 and started working at the age of 15 as a delivery worker. He later became a light goods vehicle driver and has been working in the logistic field for 16 years prior to the offence, and in his last job he earned about $10,000 a month. He was a driver for a scaffolding company before his arrest.
His wife died in 2013. Since then, his daughter has been under the care of the defendant’s elderly mother.
Due to the influence of bad peers and in order to escape from the harshness of the reality, the defendant was induced to take dangerous drug in the year 2000, but he only took dangerous drug occasionally and is not addicted.
The defence counsel points out that part of the drug of Count 1 was for the defendant’s own consumption, asking the court to give him discount in sentence, citing HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 in support.
The defence counsel submits mitigation letters of the defendant’s two elder brothers, two elder sisters, mother and daughter. The elder brothers, elder sisters and mother say that the defendant offended the law because of influence of bad peers, and they blame themselves for not having taken better care of the defendant. The daughter says that the defendant is a good father, while the mother adds that the defendant worked hard to support his family. They all express good opinion of the defendant and ask the court to be lenient to him.
The defence counsel points out that, according to the case of AG v Rojas [1994] 1 HKC 342, the sentencing tariffs for cocaine are the same as those for heroin hydrochloride, as laid down in R v Lau Tak Ming [1990] 2 HKLR 370.
She also asks the court to take totality principle into account in respect of the overall sentence for the two counts the defendant stands convicted, citing authorities such as HKSAR v Pau King Kong, CACC 465/2012, and HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, for the reference of the court.
She emphasises that the defendant pleads guilty to Count 1 and was fully cooperative with the police when being arrested. She asks the court to be lenient to the defendant.
Sentence
As rightly pointed out by the defence counsel, according to the case of Rojas, the sentencing guidelines for trafficking in cocaine are the same as those for heroin hydrochloride, as laid down in the case of Lau Tak Ming. For a quantity of up to 10 grammes of cocaine, the starting point is 2 to 5 years’ imprisonment, while for a quantity of 200 to 400 grammes of cocaine, 12 to 15 years’ imprisonment.
Count 1 involves 3.10 grammes of cocaine and the normal starting point is about 2 years 11 months’ imprisonment.
Count 2 involves 210.19 grammes of cocaine. The normal starting point is almost 12 years 2 months’ imprisonment.
In a case of such a serious nature as the present one, the background of the defendant counts very little, if any, towards mitigation.
Having considered the circumstances of the case, the court is of the view that there is no justification not to follow the sentencing guidelines for Count 1, thus adopting 2 years 11 months’ imprisonment as the starting point.
The court accepts that a small part of the cocaine in Count 1 was for the consumption of the defendant, but, even according to the defendant himself, it was in the nature of a reward to him in purchasing the cocaine on behalf of another person and making the delivery.
One also has to bear in mind that possession of a dangerous drug for a person’s own consumption itself is also a criminal offence.
According to the case of Wong Suet Hau, in a trafficking offence, if a significant amount of the dangerous drug was for the consumption of the trafficker, a discount in sentence can be given to him.
The court must say that the discount in the present case will not be considerable, because only a small amount of the cocaine was for the defendant’s consumption and it was in the nature of a reward to the defendant for his trafficking conduct.
The court adopts 2 years 7 months’ imprisonment as the starting point for Count 1.
Giving credit to the defendant for his plea of guilty, the court sentences him to 1 year 8 months’ imprisonment for Count 1.
The court is of the view that no reduction in sentence is warranted for Count 2. However, in all fairness to the defendant, he should not be sentenced to a total term of imprisonment more than when he trafficked the cocaine in the two counts together. The total amount of cocaine in the two counts is 213.29 grammes and this will bring about a sentence of a little bit more than 12 years 2 months’ imprisonment.
But the defendant has pleaded guilty to Count 1 and, on the basis that part of the dangerous drug was for his own consumption, he is sentenced to 1 year 8 months’ imprisonment. The court should take this into consideration when considering the totality of the sentence.
One way to do it is to convert the sentence of 1 year 8 months’ imprisonment into its equivalent amount of cocaine. However, as it is less than the minimum sentence of 2 years’ imprisonment for trafficking in cocaine, this cannot be meaningfully done.
The court bears in mind that sentencing is not a matter of strict mathematical calculation and is of the view that the way to achieve a just sentence is to sentence the defendant to 12 years 1 month’s imprisonment for Count 2 and then order 1 month of the sentence of Count 1 to run consecutively to this sentence, which the court now does.
The defendant is therefore to serve a total term of 12 years 2 months’ imprisonment for the two counts.
However, the defendant is in breach of a suspended sentence imposed on him when he committed the offences in this case.
The defence counsel asks the court not to activate the suspended sentence on the ground that the 4 months’ imprisonment is minimal.
With due respect, the court is of the view that this does not constitute a valid ground not to activate a suspended sentence. Having considered the whole circumstances, the court is of the view that there is no justification not to activate the suspended sentence.
The court therefore orders the suspended sentence to be activated in full and to run consecutively to the sentence in the present case.
The total term of imprisonment the defendant is to serve is therefore 12 years 6 months.