COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug in the Eastern Magistrates’ Court on 1 August 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.
The defendant admitted that on 11 May 2023, near Lamppost N6179 (“the Lamppost”), Kam Shan Road, Tai Po, New Territories, he unlawfully trafficked in a dangerous drug, namely, 59.3 grammes of a solid containing 54 grammes of cocaine.
The Facts
The facts giving rise to this offence is that on 11 May 2023 at about 9.20pm, during an operation, the police saw the defendant driving a car and was leaving a car park at Cheung Wah Estate in Fanling. The police followed the defendant’s car and saw he stopped near the Lamppost and kept him under observation.
At about 11pm, the police saw the defendant alighted from his seat and intercepted him when opened the trunk of his car. The police seized the car key on the defendant, a mobile phone, and cash $4,920.
Upon search of the car (with the later help of a drug detection dog), the police seized two plastic bags containing a total of 23.7 grammes of a solid containing 22.6 grammes of cocaine, and three plastic bags containing a total of 35.6 grammes of a solid containing 31.4 grammes of cocaine. An electronic scale and two mobile phones were found in the car.
Upon arrest and caution at the scene, the defendant claimed self-consumption. In a later video-recorded interview, the defendant admitted discovery of the cocaine in the car. He said he rented the car from a car rental for $4,000 a month since March 2023. The police confirmed this to be true with the car’s corporate owner.
The defendant now accepts and admits that he knowingly possessed the cocaine seized for the purpose of unlawful trafficking.
Antecedents and Mitigation
The defendant was 44 years old at the time of arrest. He is now 46 years of age. He was divorced in 2000 and had a son. Before his arrest, he was living with his 80 years old mother and his younger brother in a self-owned public housing. The defendant was sent to a boys’ home when he was around 13. He joined the workforce at 15 when he completed education up to Form 1. He worked as a transportation worker since.
In mitigation, Mr Li submitted the defendant committed the present offence as he was in financial difficulty because his boss ran away, owing him five months’ commission. Between June and December 2022, the defendant worked as a delivery worker using his own vehicle and his monthly income was around $42,000.
In mitigation, the defendant had pleaded guilty at the first earliest opportunity.
Considerations of Sentence
I will now determine the sentence following the six-step sentencing approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150; [2024] 1 HKLRD 1186.
Step one is to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned. The drugs involved in the count were 54 grammes of cocaine.
The sentencing tariff for trafficking in cocaine are provided for in HKSAR v Lau Tak Ming [1990] 2 HKLR 370. 50 to 200 grammes of cocaine falls within the band of 8 to 12 years’ imprisonment.
As for the defendant’s role and culpability, there is no evidence before me to suggest the defendant had any further role beyond the culpability of a courier. I therefore assess his culpability on that basis.
Step four requires me to consider whether there are any aggravating factors which might require me to enhance the starting point.
The defendant has 14 court appearances with 15 previous convictions, two of which were drugs related. There was a prior conviction for trafficking in dangerous drugs for which he had received 32 months’ imprisonment in the District Court in August 2012. He was last convicted of possession of dangerous drugs on 3 June 2015. The other convictions are not related to drug offences.
Bearing in mind the Court of Appeal’s observations in HKSAR v Wan Lai Lun at paragraphs 18 to 21, the defendant’s previous conviction for possession in 2015 for which he was sent to a Drug Addiction Treatment Centre, did not, in my view, justify an enhancement of his sentence for trafficking. On the other hand, the defendant had a relevant and similar previous trafficking conviction for which he was sentenced to 32 months’ imprisonment in 2012.
MaCrae VP in HKSAR v Har Tsz Yui [2020] 1 HKLRD 307 set out the principles in paragraphs 15 to 19:
“It is open to the judge to enhance the sentence of the defendant because of the repeated nature of offending in respect of serious offences, but much will depend on the facts of the case, the nature and seriousness of the offence, the circumstances of the individual, the degree of the defendant’s persistence in committing the particular category of offence and the need for personal and public deterrence.”
From what is known of the defendant’s background, this is the second trafficking conviction. After consideration of Mr Li’s submissions and in light of the fact that the previous trafficking conviction occurred more than eight years ago, from the date of his present conviction, which might indicate the defendant was making an effort to change his ways, I will not enhance his sentence on this occasion.
Regarding mitigating factors, personal circumstances will count for little unless they are exceptional in trafficking cases. There are none in this case. The real mitigating factor is the defendant’s timely guilty plea. The defendant is entitled to one-third discount of the starting point, which brings the sentence down to 5 years and 4 months’ imprisonment after rounding down.
Although the defendant made a claim of self-consumption upon arrest, there is no evidence nor any credible or reliable information or material that substantiated 54 grammes of the cocaine were for his own consumption. No evidence was adduced to substantiate his claim of self-consumption.
I am not prepared to accept that all or a significant proportion of the drugs was for that purpose. From all the facts and circumstances, the way the drugs were packaged, the two bags being hidden in the defendant’s car and he was apprehended in his car in a public street.
Further, the defendant now submitted that he wrongfully committed the present offence hoping to alleviate the financial stress by earning some quick money. I am satisfied that the defendant was transporting the drugs in question in order to deliver them to someone.
I have given my preliminary views to the defence and Mr Li confirmed that the defendant will not be giving evidence nor ask for a Newton hearing.
I am of the view, therefore, that the ultimate sentence of 5 years and 4 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 5 years and 4 months’ imprisonment.