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HCCC 431/2017
[2018] HKCFI 705
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 431 OF 2017
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| Before: |
Hon D’Almada Remedios J |
| Present: |
Mr Lenny Cheng, SPP(Ag) of the Department of Justice,
for HKSAR |
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Mr Leung Hok-yuen Andrew Christopher, instructed by Ho,
Tse, Wai & Partners, assigned by DLA, for the accused |
| Offence: |
(1) Trafficking in a dangerous drug (販運危險藥物) |
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(2) Attempting to traffic in a dangerous drug (企圖危險藥物的販運) |
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Reasons for sentence
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COURT:
Defendant, on 20 November 2017, you pleaded guilty to two charges before a magistrate at the Eastern Magistracy. As a result of your plea of guilty, you have been committed here to the Court of First Instance for sentence.
You have pleaded guilty to the first charge of trafficking in a dangerous drug, wherein you admitted that on 18 April 2017 at King Fai Court, Lai Chi Kok, Sham Shui Po, you unlawfully trafficked in 996 grams of a solid containing 684 grams of cocaine.
You also pleaded guilty to the second charge which was attempting to traffic in a dangerous drug, in that on that day, 18 April 2017 at Flat 3 on the 7th Floor of King Fai Court, Lai Chi Kok Road, Sham Shui Po, you attempted to unlawfully traffic in cocaine.
On 18 April 2017, at about 2.30 pm, police officers saw you leaving your residence at Flat 3, 7th Floor, King Fai Court. They then tried to intercept you. You attempted to flee, but were eventually restrained at the staircase. Found inside a sling bag carried by you were the drugs as mentioned in Charge 1.
You were arrested, and under caution you said, “The two bags of coke in the sling bag, I was going to take them to sell to others for earning money.”
The keys of Flat 3 were found upon you. You were taken back to your residence. After a search inside a chest of drawers in the bedroom, one plastic bag subsequently found to contain 932 grams of a solid containing synthacaine, a Part 1 poison, one plastic spoonful combinational tool containing 0.16 grams of a solid, containing 0.11 grams of cocaine, one plastic cover containing traces of cocaine, one electronic scale and some empty transparent resealable plastic bags were found.
You were further arrested and cautioned. You stated, “For that bag of coke in the cabinet, I put it there with a view to taking it to sell to somebody.”
The estimated street value of the dangerous drugs seized was $799,916. You admit that you believed the Part 1 poison to be a dangerous drug, cocaine.
Defendant, you are 33 years of age, and have a clear record. You were educated up to form 5 level and had been a decoration worker earning $7,000 a month. You had been a dependent on cocaine.
I am informed by your counsel, Mr Andrew Leung, that due to the stress at work you fell in to debt. You met the wrong people who tempted you to earn quick money. You thus fell into the evil temptation of trafficking in drugs. Through your plea of guilty at the first opportunity and at the earliest possible time, you admitted your wrongdoing and commission of this offence. You have also written me a letter asking me for leniency and have made promises to change for the better.
The strongest mitigating factor is of course your early pleas of guilty. As you are well informed, trafficking in dangerous drugs is a very serious offence. You were trafficking in a very large amount of cocaine. For a young man like yourself, who is 33 years of age and had a clear record so far, something terrible obviously must have happened to you for you to be tempted to commit this very serious offence. The courts are guided in their sentencing by tariffs laid down by the Court of Appeal. The applicable case in dealing with trafficking in cocaine is that of Lau Tak Min and Abdullah, and I shall sentence you on the tariff as laid down in those cases.
In respect of Charge 2, I am also guided by the case of HKSAR v Li Oi-yee (2012) 1 HKLRD at 276. In that case, the Court of Appeal laid down guidelines as to how the courts should sentence defendants who believed they possessed a drug when in fact it may not have been those drugs, or it was not in fact a drug. The Court of Appeal held that the court should look at the sentence which would have been imposed for trafficking in the drugs the defendant believed he possessed and accord a reduction. They did not, however, say what percentage of reduction should be imposed.
In the present case, you had possessed the Part 1 poison which I am told by Mr Lenny Cheng for the prosecution, that is an anaesthetic drug and there is no evidence that it is a derivative of cocaine, although the name is similar. In the circumstances of this case, defendant, this substance, although not cocaine, was nevertheless a prohibited drug. I shall state from the outset that on the basis of Li Oi-yee, I am prepared to accede to Mr Leung’s mitigation and impose a 50 per cent reduction to the sentence had the drugs in question been cocaine.
For Charge 1, you were trafficking in 684 grams of cocaine. In following the guideline case, had you been convicted after trial, an appropriate starting point would have been one of 20 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 13 years and 6 months’ imprisonment.
For Charge 2, the amount of drugs found was 932 grams of synthacaine, a Part 1 poison. Your belief was that was cocaine. I accede to Mr Leung’s submission that I should take the same purity as the purity in Charge 1 which would be approximately 67 per cent. 67 per cent would make an equivalent to 624 grams of cocaine. The starting point for 624 grams of cocaine, had you been convicted after trial, would be one of 20 years’ imprisonment. Giving you a 50 per cent reduction on that term, the starting point after trial would be a sentence 10 years’ imprisonment. Giving you credit of one third for your plea of guilty the term shall be reduced to 6 years 8 months imprisonment.
That is the individual sentence for both charges.
I now turn to the principle of totality. If the two drugs, the two amounts of drugs in Charge 1 and 2 were added together, that is, 684 and 624 grams of cocaine, that would make a total of 1,308 grams of cocaine in total. That would attract a sentence of 23 years’ imprisonment, had you been convicted after trial.
I take the difference between Charge 1 and the total sentence, that is, between 20 years’ imprisonment and 23 years’ imprisonment, that is I take the starting point of 50 per cent between that, which would equals to 21 years and 6 months’ imprisonment, which equates to approximately 885 grams of cocaine. That will be the starting point on the combined amount of drugs.
Giving you full credit for your plea of guilty, a discount of one-third, that would make the total sentence of 14 years and 4 months’ imprisonment.
To reflect that totality in the individual sentences that I have ordered, I order 10 months of Charge 2 to run consecutive to Charge 1, which equals 14 years and 4 months’ imprisonment, to which you shall so serve.
For Charge 1, you’re sentenced to 13 years and 6 months. For Charge 2, you’re sentenced to 6 years and 8 months. The starting point for both charges will be 21 years, 6 months. You’re given the full one-third discount, which will make 14 years and 4 months. To reflect that total sentence, I order 10 months of Charge 2 to run consecutive to Charge 1.
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