The accused was arrested and cautioned for trafficking in a dangerous drug. In answer to the caution, he said that he was delivering the dangerous drugs to others in Sham Shui Po. He was found to have a mobile phone, a bank book and a total of $366 in his possession.
He submitted to a video-recorded interview. He told the police in the course of the interview that he had been unemployed for a few months and had no fixed place of abode. He said he became acquainted with a male who asked him whether he was interested in making money, and the accused agreed. This male instructed the accused to go to the car park where he had been seen to pick up a white plastic bag near a rubbish bin and he was told to deliver that to Sham Shui Po.
In the video-recorded interview, the accused admitted that he knew that the five bags inside the white plastic bag contained cocaine. The accused admitted that he expected to receive between $800 and $1,300 per delivery.
The admissions made by the accused clearly amount to him dealing with the dangerous drugs for the purpose of unlawful trafficking.
Antecedents and mitigation
The accused has the advantage of being represented by Ms Munira Moosdeen. She has drawn my attention to the antecedents of the accused who is now a 59-year-old man born in Hong Kong. He completed Primary 5. Most recently, he worked as a cleaner with a monthly salary of about $10,000. However, he left his work after conflicts with his fellow workers. He had obtained that job straight out of prison which is to his credit. I accept what Ms Moosdeen says that his background and his age and his educational standard make it difficult for him to find re-employment. Even more so, it could probably be said in the difficult times that we face today.
I am informed by Ms Moosdeen that the parents of the accused died many years ago and he does not have any brothers or sisters. He married in 1996 but his wife left him some four years later. The accused does not have any children and he normally lives in Mongkok. He has no fixed place of abode. Ms Moosdeen told me that sometimes things are so difficult that he sleeps in a park.
He has a criminal record dating back to 2001. Until 2015, the convictions were for comparatively minor offences. However, in 2015, he was convicted in the High Court on two counts of trafficking in a dangerous drug and was given an overall sentence of 5 years and 8 months.
Ms Moosdeen tells me the accused is remorseful for his conduct. He tells me that he suffers from asthma. I venture the observation that given his circumstances, it is probably something of a miracle that that is all that he suffers from.
The accused has taken responsibility for his conduct and he cooperated with the police and made full admissions. Also significantly, he indicated a plea of guilty early on and on 9 April 2020 agreed to a Summary of Facts which is in the file and was committed to this court for sentence after he indicated a plea of guilty.
Sentencing Principles
Sentencing for Trafficking in Cocaine
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences, sometimes serious ones - for the families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life in prison or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for the various forms of dangerous drugs including the drug, the subject of the charge in this case.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685. The Court of Appeal declared that the guidelines in R v Lau Tak Ming & Others (above) are appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines provide for a sentence for quantities of between 50 grammes and 200 grammes of cocaine attract a sentence, if an accused had been convicted after trial, of between 8 and 12 years.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.
Application of Sentencing Principles
In my judgment, had the accused been convicted after trial, the starting point for his sentence would have been 9 years and 6 months. It is plainly due to economic circumstances that he committed this crime. In these difficult times, unemployment is becoming an even more prevalent feature of life. That said, it is no answer to traffic in a chemical as nasty as cocaine for reward to alleviate the consequences of unemployment. It is a sad reality of life that there are many like the accused who are easy prey to the temptation of a quick and illegal solution to their difficulties. However, the court cannot forget the dreadful consequences of the ingestion of cocaine and how this community is determined that sentencing for this form of conduct must be based on deterrence.
Would the accused please stand up? Doing the best I can in these circumstances, I reduce the starting point by 33 per cent which results in a sentence of 6 years and 4 months, and that is the order of the court.