He is committed to this court for sentence.
Facts Admitted
Female Hui Ching-yi who was born on 5 April 2002 came to know the defendant, who is nicknamed “Frog”.
In early May 2017, the defendant called Hui and asked her to deliver dangerous drugs to Macau for a reward of $1,000. Hui agreed.
Between 17 May 2017 and 15 June 2017, the defendant and Hui carried dangerous drugs to Macau on 13 occasions. On each occasion, they would meet up at Hong Kong Macau Ferry Terminal where the defendant would pass a packet containing about 30 pellets of dangerous drug Hui believed to be cocaine for Hui to conceal in her underpants and, at a later stage, in her vagina. The defendant and Hui would go to Macau together to deliver the dangerous drug. They would also return to Hong Kong together. The reward for Hui was $1,000.
According to the immigration movement record, Hui and the defendant travelled to Macau for 13 times between 17 May 2017 and 15 June 2017 and Hui had never been to Macau other than delivering the dangerous drugs with the defendant. On each occasion, the amount of dangerous drug was at least 30 packets and at the most 60 packets. Each packet was about 1 gramme in weight being sold at HK$500 or the same amount of Macau currency.
On 11 June 2017, while returning to Hong Kong from Macau by ferry, the defendant introduced Hui to a person named Daniel, that is male Li Shing-chun, via WhatsApp.
The average purity of the cocaine in powder form examined by the Hong Kong Government Laboratory was 74% and 75% in May and June 2017 respectively while those of cocaine in crack form were 85% and 90%respectively.
The defendant accepts that for the purpose of sentencing of the 13 occasions, the quantity of cocaine was 30 packets in 12 of them while that of the remaining occasion was 60 packets. In total, there was 420 packets, making a total quantity of cocaine of 95 grammes.
Criminal Record
The defendant has 2 previous convictions dated 19 February 2016 when he was sentenced to probation for 12 months for the offences of common assault and criminal intimidation.
Mitigation
The defendant was born on 28 September 1998 and was not yet 19 years of age at the time of the offence. Counsel for the defendant, Mr McGowan, makes a thorough and persuasive mitigation on behalf of the defendant. He tells the court that there was a controller above the defendant who was the source of the dangerous drugs and was making the real money.
At the time of the offence, the defendant was still at school, studying in Form 4. He lived with his parents but worked part-time to supplement his pocket money. His girlfriend became pregnant and he quitted school to earn more money. The pressure and demands of his girlfriend caused him to leave his job. He was under severe pressure and was recruited by a friend to traffic in dangerous drug.
Hui came to know about this and asked to join as she needed to support her sick mother. The defendant refused but gave in when Hui persisted. Mr McGowan emphasises that the defendant did not pressurise Hui and there was no sexual exploitation.
The defendant was given the dangerous drug which was already packed by a much older man called Ah Sam or Fung Gor and the reward for the defendant was $2,000 to $3,000 per trip.
The defendant stopped trafficking in dangerous drugs after his girlfriend had given birth to their baby and became a barber. He had been in the job for 2½ years when he was arrested in October 2019.
Mr McGowan points out that the previous convictions of the defendant were of minor nature and should be disregarded in sentencing. He reiterates that the defendant was not yet 19 years of age when he committed the offence and that Hui was driven to traffic in dangerous drugs by her own powerful perceived necessities.
He urges the court to give discount to the defendant for his young age, citing the authorities of R v Yu Chun Hoi [1991] 1 HKLR 479, HKSAR v Dhaliwal Jaspreet Kaur and Another [2020] 4 HKC 161 and Leung Hiu Yeung and Others v Secretary for Justice [2018] 6 HKC 99 for the reference of the court.
Mr McGowan draws the court’s attention to the reasons for sentence of Hui and the adult whom Hui had helped to traffic in dangerous drugs. The adult was older than Hui by 9 years and only had his sentence enhanced by 1 year for making use of Hui.
Mr McGowan also submits to the court a letter of mitigation written by Deacon Peter Wong who expresses good opinion of the defendant, saying that the defendant is sorry for what he did and is willing to make a change.
Mr McGowan asks the court to be lenient to the defendant in sentencing.
Sentence
The Court of Appeal laid down sentencing guidelines for trafficking in cocaine in AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming and Others [1990] 2 HKLR 370. Although the offence in the present case is conspiracy to traffic in dangerous drug, as the total amount of dangerous drug is known, it is just and fair to decide on the starting point with reference to it. According to the facts admitted, defendant and Hui together trafficked 420 pellets of cocaine, each containing 0.23 grammes of narcotic content.
Although this is equivalent to an aggregate amount of 96.6 grammes of cocaine, for reasons unknown, the amount is stated to be 95 grammes in the Summary of Facts. As this amount is only an estimate and more importantly is the amount admitted by the defendant, the court is of the view that it is only fair that this amount should be adopted in this sentencing exercise.
According to the sentencing guidelines, the starting point for trafficking in 50 to 200 grammes of cocaine is 8 to 12 years imprisonment. The starting point for 95 grammes of cocaine is therefore approximately 9 years 2 months imprisonment.
Mr McGowan makes painstaking efforts to persuade the court that due to the young age of the defendant, discount in sentence should be accorded to him.
The court must point out that the defendant was not of the age of extreme youth which the court should take into consideration in sentencing. He would be turning 19 years of age in a few months time when he committed the offence. Despite all the authorities cited by Mr McGowan, it is not part of the sentencing guidelines that in drug trafficking cases, young age will necessarily result in a discount in sentence.
On the contrary, there are ample authorities saying that in a case of such serious nature as trafficking in dangerous drugs, young age can hardly be a mitigating factor. The court is of the view that the defendant at the time of the offence was not of such a young age that he could use naivety as an excuse to offend the law.
As can be seen in recent cases, there is a trend for drug traffickers to make use of young people to deal in dangerous drugs. The court must not send a wrong message to the public that young drug traffickers will be given lenient sentences.
There are 2 aggravating factors in the present case in that there was an international element involved because the dangerous drugs were taken outside Hong Kong and that Hui who just turned 15 years of age at the time of the offence had been recruited to traffick in the dangerous drugs. The court is of the view that there is no reason to depart from the sentencing guidelines, thus adopting 9 years 2 months imprisonment as the initial starting point.
Having considered the authority of HKSAR v Chung Ping Kun [2014] HKCU 1568, the court enhances the starting point to 9 years 6 months for the international element involved.
As for the involvement of Hui in the case, the court accepts the mitigation of Mr McGowan that Hui became part of the conspiracy because of her own persistence instead of being actively exploited by the defendant to do so. Taking also into consideration the difference in age between Hui and the defendant being only three-odd years, the court is of the view that it is not fair to enhance the starting point for this reason. The court therefore adopts 9 years 6 months imprisonment as the ultimate starting point.
Giving credit to the defendant for his plea of guilty, the court sentences him to 6 years 4 months imprisonment.