COURT: The defendant pleaded guilty to the offence of conspiracy to traffic in a dangerous drug, contrary to Section 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Chapter 134 and Sessions 159A and 159C of the Crimes Ordinance, Chapter 200. He pleaded guilty before a magistrate on 23 May this year and was committed to the Court of First Instance for sentence.
It is alleged that between the 28 July 2022 and 16 September 2022, he conspired together with other persons unknown to unlawfully traffic in cocaine.
According to the Summary of Facts to which he agreed at the time of the plea, around 1.40 am on 16 September 2022, the defendant was intercepted and searched when he was on the driver’s seat of a private car. As a result of the search, all the drugs, a total of 71 plastic bags containing cocaine were found on his person, in his sleeping bag or in the car. Also, a total of two mobile phones and cash of $62,819.30 were also seized.
The 71 plastic bags of cocaine seized by the police on that occasion had an estimated street value of $860 per gramme in powder form of cocaine and $1,465 per gramme in cracked form of cocaine.
In a subsequent video-recorded interview with the police, he admitted that he knew the drug seized from him and from the car was cocaine. He said that the car was borrowed from a friend in August, and in that month, he also started to traffic in cocaine. He said two bosses arranged for the cocaine to be given to him, and the cocaine had already been packed in small resealable plastic bags at the time of collection. He would contact the customers on phone for delivery of the cocaine, then he would drive the car to bring the cocaine to customers. On each occasion, he would receive cash payments from the customers. He said he would sell the cocaine at around $400 to $500 per bag, and earned $100 for selling each bag of cocaine. The remaining proceeds would be given back to the bosses.
He said at the time of his arrest, he was distributing cocaine to a customer. The cash found on the car and on him were the proceeds of the sale of cocaine. In respect of the two mobile phones, he said the mobile phone in the sling bag, that is Exhibit P11, it contained the records of his sale of cocaine.
The bags of cocaine seized by the police on him and from the car contained cocaine narcotic in the range from 0.68 grammes per three bags to 7.95 grammes per 26 bags. And the messages recorded on Exhibit P11, that is the mobile phone found in the sling bag, revealed that between 28 July 2022 and 16 September 2022, he had trafficked in a total of 965 bags of cocaine.
It is an admission in the Summary of Facts at paragraph 4 that the bags of dangerous drug trafficked by him during the period of the conspiracy were estimated to contain at least 218.73 grammes of cocaine narcotic in total.
He now agreed and admitted that between 28 July to 16 September 2022 he conspired with other persons to unlawfully traffic in cocaine.
The defendant was born in Spain, and he came to Hong Kong at the age of 6 to 7 years old. He was 36 years old at the time of the offence and he is now 37. He has one criminal record for a relatively minor offence in 2019, for which he was fined $4,000. That record had nothing to do with dangerous drug.
In mitigation, counsel Mr Chase Pun informed this court that the defendant had received education up to Form 3 in Hong Kong, and he worked as a hairstylist at the time of his arrest. He was single but he lived with his girlfriend at a rented premises, paying a rental in the sum of $11,000 a month.
Because of the pandemic, his income dropped, and his girlfriend also could earn nothing during that period. As a result, he was in financial difficulty and he was induced by other people to act as courier to deliver cocaine to various customers for reward.
Counsel also submitted a letter prepared by the defendant, informing this court that he was deeply remorseful for what he had done, and that during the period of remand, he kept on improving himself by taking new lessons.
In respect of sentencing, I bear in mind the approach as stated by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290, and also the principle as modified by the Court of Appeal in the case of Lee Ming Ho [2024] 1 HKLRD 1186. I also take into account the principles specified in the case of Chan Kam Loi CACC 410/2012 and Tsang Ka Wing [2017] 5 HKLRD 799.
Where a conspiracy to traffic in an unspecified quantity of dangerous drug is concerned, the court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts of the case, and the facts relied upon will inevitably lean in favour of the defence.
When taking into account the sentencing principle, the court should bear in mind that the matter was an ongoing conspiracy which will continue through until somebody was arrested. A conspiracy involving multiple transactions is much more serious than trafficking on one single occasion.
I would attempt to calculate the quantity of drug involved in this case by making reference to paragraph 4 in the Summary of Facts, which states that the bags of dangerous drug trafficked by the defendant during that period were estimated to contained at least 218.73 grammes of cocaine narcotic in total.
According to the guideline for trafficking in cocaine, to traffic between 200 to 400 grammes of cocaine will entitle the court to adopt a starting point of 12 to 15 years. On an arithmetic calculation, the starting point for 218 grammes of cocaine narcotic should be 12 years and 3 months’ imprisonment.
In respect of the role and the culpability of the defendant, I bear in mind that the court is now facing a charge of conspiracy. The conspiracy had a period of over thirteen months, and also I bear in mind its scale, that is over 900 packets of drug or cocaine were delivered within this period of thirteen months. There were multiple deliveries of multiple packets to different customers on different occasions.
On the other hand, I also accept that the role of the defendant was one of a courier in this case. However, he was not only involved in the delivery of the cocaine. He was also involved in the collection of cash payment from the customers and making a record in his mobile phone.
Taking into account all the circumstances, I consider that the notional starting point for the defendant should be one of 12½ years. There being no other aggravating feature, 12½ years would be the starting point that I adopt.
The defendant pleaded guilty at the earliest opportunity, and there is no other mitigating factor that entitles him to any further discount. As such, he is sentenced to the ultimate sentence of 8 years and 4 months’ imprisonment, and this is the sentence that I impose on him, 8 years and 4 months.