COURT: The defendant confirms his plea and admission of the facts before me. He is charged with the following charges:
Charge 1 - Trafficking in a dangerous drug
On 7 May 2022, outside Wong Tai Sin Post Office, No. 103 Ching Tak Street, Chuk Un, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 591.3 grammes of a solid containing 503.5 grammes of cocaine.
Charge 2 - Possession of a dangerous drug
On 7 May 2022, at Room 310, Lung Hing House, Lower Wong Tai Sin Estate, Ching Tak Street, Chuk Un, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely, 0.01 gramme of a solid containing trace cocaine and tetrahydrocannabinol.
The facts, as admitted, are these. On 5 May 2022 at around 0001 hours, an inbound parcel from Chile (“parcel”) was
selected for examination at the Customs Examination Hall at the Chek Lap Kok Air Mail Centre. The parcel was declared as “LANA”, wool in Spanish, but upon check, 591.3 grammes of solid containing 503.5 grammes of cocaine (A1 to A8) were found hidden in the cotton reels in the parcel.
The declaration on the parcel were given as follows: recipient, Chow Ka-chun, 3rd floor, Room 10, Lung Hing House, 00 Wong Tai Sin (11), and with a telephone number.
On 5 May 2022 at around 1525 hours, customs officer PW9 placed a mail notification card in relation to the parcel at the mailbox of the recipient address at Lung Hing House, Wong Tai Sin.
On 7 May 2022 at around 1125 hours, the defendant went to counter 4 of the Wong Tai Sin Post Office, manned by post office staff. The defendant asked about the parcel and presented the mail notification card for its collection. The post office staff then went inside the office and notified customs officers who approached the defendant at counter 4. The defendant said that the parcel belonged to him and he wanted to collect it. The defendant then signed on the delivery sheet and confirmed that the information on the parcel was correct. The parcel was handed over to the defendant and he walked out of the post office with the parcel.
The defendant was intercepted outside Wong Tai Sin Post Office at about 1131 hours on 7 May 2022 by customs officers. On the same day, upon search of the defendant’s home at Room 310, 3rd floor, Lung Hing House, the following were found inside his bedroom:
(1) tobacco shreds on the floor;
(2) cigarette filters containing 0.01 gramme of a solid containing cocaine on the floor;
(3) seven plastic bags containing traces of solid containing cocaine;
(4) three cotton swabs containing traces of a solid containing cocaine;
(5) a cigarette rolling machine;
(6) a lot of new cigarette tips; and
(7) a metal can containing traces of cocaine and tetrahydrocannabinol on the shelf in his bedroom.
Upon caution, the defendant gave admissions as follows. The cigarette filters was used to contain “Coke”. “Coke” stands for cocaine. The cigarette rolling machine was used to roll the tobacco with cocaine for inhaling. The holes on the lid of the metal can on his bed stand was used for inhaling cannabis. He refused to say where he obtained the dangerous drugs from, and he was the only user of the bedroom.
A mobile phone belonging to the defendant with a SIM card was seized under a search warrant. There was a photograph showing a cannabis plant trimming and a text message which said that this was a “new item and it’s the strong and powerful Sativa whose price remained the same...fragrant to the nose, flowing with ideas”. Such matters were found from a photo of his mobile phone.
Government chemist certificate confirmed the dangerous drugs seized from the parcel as follows:
(A1) 72.4 grammes of a solid containing 61.1 grammes of cocaine;
(A2) 74.3 grammes of a solid containing 63.2 grammes of cocaine;
(A3) 65 grammes of a solid containing 55.6 grammes of cocaine;
(A4) 76.7 grammes of a solid containing 65.3 grammes of cocaine;
(A5) 75.6 grammes of a solid containing 64.7 grammes of cocaine;
(A6) 75.5 grammes of a solid containing 64.4 grammes of cocaine;
(A7) 76.4 grammes of a solid containing 64.8 grammes of cocaine;
(A8) 75.4 grammes of a solid containing 64.4 grammes of cocaine.
The government chemist (certificate) dated 6 September 2022 confirmed that the seizures from the defendant’s bedroom, namely, the cigarette filters contained 0.01 gramme of a solid containing cocaine. As for the seven plastic bags and three cotton swabs, they had traces of a solid containing cocaine. In relation to the metal can, it contained traces of cocaine and tetrahydrocannabinol, being a tetrahydro derivative of cannabinol. The estimated street value of the cocaine seized in the case is $536,909.48.
The defendant now admits and accepts that on 7 May 2022 in Hong Kong, he had unlawfully trafficked in a dangerous drug, namely, 591 grammes of a solid containing 439.1 grammes of cocaine, and possessed a dangerous drug, namely, 0.01 gramme of a solid containing trace of cocaine and tetrahydrocannabinol.
Mitigation
The defendant is currently 26 years old. He was born in Hong Kong. He received education up to Form 5, and had been working in logistics since then, earning $8,000 to $10,000 per month. The defendant has one previous conviction for possession of dangerous drug. I am told the drug involved was cannabis.
The defendant plans to retake a few subjects for the DSE during his remand. Counsel for the defendant submitted that although the drugs did cross the border, he referred this court to the case of Ali Qasim and Lee Ming Ho. Counsel submitted that an increase of 4 to 5 per cent would have been more than sufficient to reflect so-called “international element”.
Counsel also submitted that the boss allowed the defendant to keep 15 per cent of the drugs for his consumption. Counsel further elaborated that whilst this may not qualify as a significant portion, this court should still take it into account. A 10 per cent extra discount is urged.
The defendant committed the present offences whilst on bail for an offence of possession of dangerous drug, for which he received a sentence of a fine of $6,000. Counsel urged this court not to put a weight on it.
Concerning Charge 2, counsel urges this court to impose a very short term of imprisonment and order for concurrent sentences.
Discussion
For many years, the community of Hong Kong has taken a severe view of drug trafficking. No doubt the drug has terrible consequences on the individual. There are also serious consequences for the community.
The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in cocaine. In approaching the sentence for the present offence, I adopt the six-step approach as propounded in the case of Herry Jane Yusuph.
The guidelines for trafficking in cocaine are laid down in Lau Tak Ming and Pedro Nel Rojas. The quantity of cocaine involved fall within the band of 15 to 20 years’ imprisonment. In the beginning of my assessment, I adopt 7 years and 7 months’ imprisonment as a starting point for the quantity involved.
I accept counsel’s submission that the defendant is a mere courier. However, given the fact that the drugs did cross the border, I have considered the cases of Ali Qasim and Lee Ming Ho, I accept that the defendant’s role in the sense that he was collecting the parcel from abroad. Further, the defendant committed the offence whilst on bail. I would therefore enhance the sentence for 9 months, so as to reflect these two factors. So the enhanced starting point becomes 18 years and 4 months’ imprisonment.
The defendant raises the issue of self-consumption, and submits that the portion does not qualify as a significant portion. The prosecution raises no objection to such claim. I have considered circumstances according to the Admitted Facts. The street value of the cocaine seized is about $536,000. I find it hard to accept that the boss had allowed the defendant to keep about 15 per cent of the drugs, which amounts to about HK$80,000 in terms of its street value.
However, shortly before his commission of the present offences, he has committed a possession charge. He claims that he had cannabis on that occasion. Charge 2 here involves trace of cocaine and trace of tetrahydrocannabinol. Therefore, whilst I am unable to accept that the defendant has as much as 15 per cent of the drugs, I still find that the defendant would consume part of the drugs under Charge 1. I would exercise my discretion by giving a 3 per cent discount, which would result in 17 years and 9 months’ imprisonment.
The defendant is entitled to a full one-third discount for his timely plea, so the sentence for Charge 1 is 11 years and 10 months’ imprisonment.
In respect of Charge 2, the usual range of sentence for possession of dangerous drugs is 12 to 18 months’ imprisonment. However, the court may exercise its discretion to impose a lesser sentence for the very small amount of drugs involved. I refer to the case of Mok Cho Tik.
The quantity involved in Charge 2 is only 0.01 gramme of a solid containing traces of cocaine and tetrahydrocannabinol. I am of the view that 30 days’ imprisonment is the appropriate starting point. It will result in 20 days’ imprisonment after the one-third discount.
In light of the totality principle and the whole of the circumstances, I order the sentence of Charge 2 to run concurrently to that of Charge 1.
In view of my reasons for sentence, the defendant is sentenced to 11 years and 10 months’ imprisonment.