In sentence, I have considered the whole circumstances of the case, including its nature and facts in particular, the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on his behalf.
The facts of the case may be summarised as follows. On 12 February 2015, the defendant was intercepted at Customs Clearance at the Hong Kong International Airport upon his arrival from Sao Paolo via Doha. He was found in possession of 6 slabs of cocaine which were concealed in his shoulder bag and rucksack.
Under caution, the defendant admitted that the stuff concealed was cocaine. He further said that someone would contact him in a hotel after he had checked in. In a subsequent interview, he said, since he was in need of money, he agreed to bring drugs into Hong Kong, in return for a reward of US$30,000, which was to be paid after successful delivery. He knew the stuff he was bringing was cocaine. The plan was that someone would contact him to collect shoulder bag and rucksack which contained the drugs, but he did not know who would be contacting him. The defendant then took part in a controlled delivery which yielded no result. The dangerous drug which the defendant trafficked in was 1,774 grammes of a solid containing 1,185.50 grammes of cocaine.
I was told that the defendant is a Colombia now 33 years of age. He completed high school education, he was living with a woman in Colombia and has one son and one daughter. He owned an electronic shop selling cell phones, chargers and memory cards. He has no criminal record both in Hong Kong and in Colombia.
In mitigation, counsel for the defence, Mr Tracy, urged me to take into account that the defendant frankly admitted the offence as soon as he was arrested, his co-operation with the authority and he pleaded guilty at the earliest opportunity. He also told the court that the defendant was lured into committing the offence since he has a great financial burden. Not only that the family was living under a tight budget, the house they lived in needs urgent repair, in particular as there has been heavy rains in the region.
The Court of Appeal held in AG v Chang Chen Liu-sa [1995] 1 HKCLR 69, that in the case of trafficking in cocaine, the guidelines in Lau Tak Ming [1990] HKLR 370 is applicable, since the narcotic contents of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin, if the narcotic content is over 600 grammes.
In the subsequent case of HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes. This case is applicable.
The defendant took the dangerous drugs into Hong Kong, and in my judgment, having regard to cases such as HKSAR v Dewi Kartika Sari Binti Musli CACC 101/2012, for this aggravating factor, the starting point should be enhanced by 2 years.
In all the circumstances, I would adopt 24½years as the ultimate starting point. The defendant is entitled to one-third discount for his guilty plea. He has assisted the authority by participating in a controlled delivery. Although it yielded no result, he has demonstrated his willingness to assist. However, due to practical difficulties, the controlled delivery can only be performed at a hotel, which was not the one the defendant was arranged to stay. The person who was to collect the drug was to send the defendant a message through WhatsApp. No such message came to the defendant’s mobile phone. I accept that it is appropriate to consider the matter on the basis that there was no fault on the part of the defendant that the operation met with no result.
Having regard to HKSAR v Saavedra Rosamarie Bernardo CACC 424/2011, the submission of Mr Tracy and the cases he referred to at the court, for this matter, I am prepared to give the defendant a further discount of 16 months.
Having considered the whole circumstances, including word from counsel for the defence said on behalf of the defendant, of the view that this is the extent of discount he is entitled to.
So defendant please stand up. For the reasons I have mentioned, I sentence you to 15 years’ imprisonment.