HKSAR v. CROOKENDEN ADRIAN ALEXANDER LAFONE

DCCC 353/2019

[2019] HKDC 1396

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug (Charge 1) and one charge of possession of a dangerous drug (Charge 2).

Facts of the case

Charge 1

2.  David Neil Bennet (“PW1”), Superintendent of Police, was engaged to assist in a controlled-buy operation against a suspected drug trafficker nicknamed “Ruby 2” by posing as a customer.  On 30 January 2019, PW1 was given a mobile phone for the purpose of communication with Ruby 2, whose phone number was known by the police.  PW1 contacted Ruby 2 via WhatsApp later the same day.  PW1 sent the following message to the phone number known as Ruby 2’s number:-

“Hey bro, need ur help. Violet introduced me ... … she is one active (cow icon) Adam ... CX pilot ... got an important party coming up ... $$$$$ ... help pls”

3.  A few minutes later, PW1 received a WhatsApp message from Ruby 2’s number asking “Who’s Violet?”.  PW1 then replied with the following message:-

“That bargirl ... to be honest ... a wild one .... Can we meet up sometime. I got a promotion depending on what I provide .... I have worked too friggin hard to get overlooked .... Ur my first and last hope .... Basically need around 20k’s worth for Friday night .... Get this done and u can travel business class thereafter ... Help!”

PW1 further sent the following message to Ruby 2’s number a few minutes later:-

“Call me any time before 2345. Got a short haul flight to Singapore”.

4.  After some further exchanges via WhatsApp between PW1 and Ruby 2, PW1 received a phone call from Ruby 2’s number, during which Ruby 2 asked PW1 what types of drugs he was looking for.  PW1 replied that he wanted HK$20,000 worth of “Coke”.  Ruby 2 said he would arrange and get back to PW1 later.  Upon Ruby 2’s later confirmation, PW1 dated Ruby 2 via WhatsApp to complete the transaction at 5 pm on 1 February 2019 at outside Nos 24-30 Green Lane, Happy Valley.

5.  At about 4:45 pm on 1 February 2019, PW1 arrived at outside Nos 24-30 Green Lane, Happy Valley to wait for Ruby 2.  PW1 was provided 40 HK$500 banknotes with their serial numbers recorded (“Marked Banknotes”) for payment. Other police officers ambushed in the vicinity of Nos 24-30 Green Lane.

6.  Between 4:23 pm and 6:23 pm the same day, PW1 kept contact with Ruby 2 and informed him of his outfit.  It was until 6:24 pm, the defendant approached PW1 at outside Nos 24-30 Green Lane.  The defendant confirmed PW1’s identity and PW1 handed the defendant the HK$20,000 worth Marked Banknotes.  The defendant then passed PW1 two red “lai sze” packets (later confirmed to be containing in total 20 plastic bags containing a total of 12.98 grammes of a powder containing 9.34 grammes of cocaine) (Exhibit “E1”) from his inside jacket pocket and said,

“The drugs are inside, good quality”.

Upon taking over the two red “lai sze” packets, PW1 gave a prearranged hand signal to the ambushed officers.

7.  Some police officers then intercepted the defendant and revealed their identities.  A body search was conducted on the defendant.  The Marked Banknotes were retrieved from the defendant’s left jacket pocket.  Further, a mobile phone was found in the defendant’s left front trouser pocket.

8.  The defendant was arrested for trafficking in a dangerous drug.

9.  The street value of E1 is estimated at HK$12,305 at the material time.

10.  At all material times, the defendant possessed the E1 for the purpose of unlawful trafficking.

Charge 2

11.  In the body search conducted on the defendant after he was intercepted, it was found in a zip pocket of the defendant’s jacket six red “lai sze” packets (later confirmed to be containing in total seven plastic bags containing a total of 3.18 grammes of a powder containing 2.16 grammes of cocaine) (Exhibit “E2”).

12.  The defendant was then arrested for possession of a dangerous drug.

13.  The street value of E2 is estimated at HK$3,015 at the material time.

14.  At all material times, the defendant possessed the E2 for the purpose of his own use.

Criminal record

15.  The case was adjourned for the Prosecution to clarify the defendant’s criminal record as the defendant disputed that he had been convicted of a trafficking in dangerous drugs offence.

16.  According to the amended criminal record, the defendant had been sentenced by the Court on one occasion in 2006 for a total of four possession offences involving dangerous drugs and Part I Poison.  He received a suspended sentence plus a fine for each of those four offences.  The Prosecution also confirms that, on that occasion, one of the four offences was originally a drug trafficking offence.  The defendant was found guilty on a lesser charge and convicted of a possession offence instead.

Mitigation

17.  The defendant, aged 57, is single and was born in Germany.  His father was a captain in the British Army and is now retired.  He completed university studies in history and politics in the UK.  In April 1989, he came to Hong Kong.

18.  He is a financial consultant by occupation and earns about $10,000 a month.  At the time of offending he was residing in the New Territories.  He is a well-known personality in his local community; a well-known user of cocaine.

19.  He had been a drug user of cocaine since 1994, as evidenced by his loss of teeth and the positive results for cocaine and cannabinoids indicated in the urine tests taken a few days after his arrest.  His dosage was 1 gramme a day.

20.  He has been off dangerous drugs for the longest period in the last 25 years as a result of his remand in custody for the present case.

21.  It is submitted there was an element of inducement or persuasion by the undercover agent to have the defendant sell him the cocaine as revealed in his WhatsApp messages to the defendant, particularly, those relating to his being desperate for the cocaine, his promotion being dependent on his being able to supply some cocaine and his promises that the defendant could travel business class thereafter.  The amount of dangerous drugs trafficked by the defendant in the present case was specifically as a result of the said begging request, entrapment from the supposed airline pilot.

22.  Further, it is suggested by the Defence that the defendant was targeted by the police because of the erroneous criminal record indicating that he was a drug trafficker.

23.  No drugs or drugs paraphernalia of any description was located during the search at the defendant’s home.  There was a simple phone with the same phone number for 20 years.  The defendant had to make a journey from the New Territories to the outlying islands to purchase the cocaine for the undercover agent and also to buy for his own supply.  The amount he purchased for himself was to last the entire Chinese New Year holiday period.

24.  He pleaded guilty at the earliest opportunity.  His previous conviction was a minor one.  It is also submitted that, as both offences were committed at the same time, it would not be wrong for the court to impose a concurrent sentence.  And the tariff for the simple possession can be up to 18 months with the latent risk factor to be taken into consideration.  Consecutive sentences could lead to an unjust sentence for the defendant.

25.  Mitigation letters written by Mr Stephen Terry, solicitor, and Mr Andrew Wells, a former senior directorate official of the Hong Kong SAR, passing positive comments on the defendant’s personality and inviting the court to deal with him leniently were also submitted by the Defence for my consideration.

Sentence

26.  I have carefully considered everything said by Mr Donald in mitigation on behalf of the defendant.

27.  Although the defendant had previously been acquitted of a drug trafficking offence and convicted of a lesser offence of possession, I do not consider this fact an aggravating factor.  Nor do I consider his criminal record of the four possession offences an aggravating factor.

28.  The starting point upon conviction after trial for trafficking in cocaine up to 10 grammes is between 2 years and 5 years’ imprisonment (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370).  Trafficking in 9.34 grammes of cocaine would therefore attract a starting point of about 56.5 months for Charge 1.

29.  I do not find that there was any entrapment in the present case.  It can be seen from the WhatsApp communications between the defendant and the undercover agent that the defendant was very cautious and had sought information from the undercover agent to verify the identity of “Violet”.  In my view, the said evidence clearly showed that he would have tried to sell the drugs to anyone else whom he considered safe.  I find that the relevant parts of the WhatsApp messages relied upon by the Defence, that is the alleged inducement, persuasion or entrapment, showed that the police did no more than give the defendant, whether he was in the position of a targeted drug trafficker or not, the opportunity to fulfil his then existing intent to commit the crime.  On the other hand, there is no evidence before me to show or suggest that the defendant would not have reached the agreement and/or gone through the transaction with the undercover agent had it not been for those parts of WhatsApp messages in question and/or the so called begging request.  I am satisfied that the WhatsApp messages in question and/or the begging request played no part in the defendant’s agreeing to traffic in a dangerous drug [see HKSAR v Ejegi Godspower, CACC 159A/2014; CACC 159/2014].

30.  The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 months to 18 months.  But that was not “the be all and end all” of the appropriate starting point.  The quantity would be the main governing factor which would determine where the starting point would lie.  If an offender was a persistent offender, he would expect the starting point to be higher than it otherwise would be.  The existence of risk factor including the degree of risk is not a matter of mathematics upon which this court should provide a tariff.  Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs.  The full circumstances of risk must be assessed: HKSAR v Mok Cho Tik [2001] 1 HKC 261.

31.  In view of the penalty received by the defendant in 2006, I am prepared to treat his criminal conviction as a minor one.

32.  Having regard to the quantity of drug involved, that is 2.16 grammes, and his minor conviction record, I find that 12 months’ imprisonment is the appropriate starting point.

33.  Taking into account the quantity of drug involved and the facts admitted by the defendant that the drug was packed in a total of seven plastic packets which were contained in six “lai sze” packets, they were found in the zip pocket of the defendant’s jacket and in his possession while he was committing the offence of trafficking, I am of the view that these are sufficient for latent risk to exist, that is the drug may find its way to the hands of others.

34.  I do note his claim of daily dosage at 1 gramme.  I consider the latent risk to be at the lower end and thereby enhance the starting point by 3 months to reflect the latent risk.

35.  Apart from his guilty pleas, I do not find any other mitigating factors which justify any further reduction.  I therefore sentence the defendant to 37 months and 2 weeks’ imprisonment for Charge 1 and 10 months’ imprisonment for Charge 2.

36.  The possession of cocaine was separate and distinct from the trafficking charge and consecutive sentence is therefore appropriate.  Bearing in mind that it would not be right to pass an overall sentence greater than that which would have been passed had all the drugs been the subject of a single charge of trafficking, the positive urine test indicating that the defendant is a cocaine user and the possible discount that he might have received for own consumption after factoring in the latent risk, I find that a total of 37 months and 2 weeks’ imprisonment would properly reflect his criminality on both charges.

37.  I therefore order the sentences on both charges to run concurrently and sentence the defendant to 37 months and 2 weeks’ imprisonment.