CRIMINAL CASE NO. 378 OF 2011
COURT: The 1st defendant has pleaded guilty to Count 1 for trafficking in a dangerous drug, namely 224.41 grammes of a mixture containing 186.44 grammes of heroin hydrochloride.
The 2nd defendant has pleaded guilty to the 2nd count of trafficking in a dangerous drug, namely 224.41 grammes of a mixture containing 186.44 grammes of heroin hydrochloride. He has also pleaded guilty to the 3rd count of possession of a dangerous drug, namely 6.66 grammes of a mixture containing 5.32 grammes of heroin hydrochloride.
The facts are not complicated. In relation to the 1st count, the 1st defendant was intercepted on 2 June last year at 2.26 pm at the Customs Arrival Hall in the Lo Wu Terminal Control Point. Immigration records revealed that he had left Hong Kong on the same day at 3.05 am via the Lok Ma Chau Control Point.
The 1st defendant was searched, and underneath his left armpit was concealed a plastic carrier bag inside of which were found 10 ziplock type plastic bags filled with heroin of the quantity which is in Count 1.
The street value of the drugs is around $151,701.16.
The 1st defendant was arrested, and under caution, he admitted to carrying the dangerous drugs, and he was to receive $3,000 as a reward.
In relation to the 2nd count, the 1st accused, upon arrest, agreed to participate with Customs officers in a controlled delivery of the drugs. Initially, the 1st defendant said he was to deliver the drugs to a person called “Ah Fat”, but he could not contact this person, and subsequently, he made contact with the 2nd accused and arranged to meet him at the King 1 Restaurant.
The 2nd defendant arrived at the restaurant, sat at the same table as the 1st defendant, and after a whispered conversation, the heroin mixture was handed over to the 2nd defendant by the 1st defendant.
The 2nd defendant was intercepted by Customs officers and under caution, the 2nd defendant said he was aware that the bag he received from the 1st defendant contained heroin and its purpose was for distribution to other people.
Following his arrest, the 2nd defendant was taken back to his home in Sham Shui Po, and upon a body search, hidden inside the underpants of the 2nd defendant was found a plastic bag containing 14 individually-wrapped pellets of heroin.
These 14 pellets of heroin hydrochloride had a street value at the time of about $4,502.16.
The heroin hydrochloride, according to the 2nd defendant, was for self-consumption.
The prosecution, upon the 2nd defendant’s plea to possession on the 3rd count, had indicated to the court that they are prepared to accept that plea of possession and would not proceed any further against the defendant on trafficking in relation to the 3rd count, so I accept the 2nd defendant’s plea on the 3rd count to possession only.
In relation to the 1st accused, he is aged 48 and has 21 previous convictions, but nothing similar. Mr Marray, who represented him, mitigated on the 1st defendant’s behalf and pointed out that the 1st defendant not only had pleaded guilty but had fully co‑operated with Customs officers immediately upon his arrest. Mr Marray also very helpfully submitted to this court before today three cases which he relied upon in relation to the extent of the discount that the court should make in view of the defendant’s assistance to the Customs officers.
In the first case of HKSAR v Ng Shek Yu CACC178/2000, the Court of Appeal have said at page 4 of the judgment in the first full paragraph of that page that:
“The question to be answered, however, is whether a discount of 40% for a defendant who was not a supergrass and who had provided assistance to the authorities without giving evidence against other offenders is appropriate. We have no doubt that it was appropriate. We have on previous occasions stated that in similar circumstances to those which happen to prevail in the present case, a discount of between 40 to 45% will usually be appropriate.”
In that case, the applicant had pleaded guilty and also provided evidence against a co-conspirator and was prepared to go into the witness-box against the co-conspirator. The applicant in that case had not been caught in the act of trafficking, and it was because he fully admitted his role that the prosecution successfully charged him with trafficking.
As it turned out, the co-conspirator absconded whilst on bail, and so the applicant had not given evidence against that co-conspirator. However, the applicant in that case had been approached in prison by a male offering $50,000 to persuade him not to give evidence against the co‑conspirator. The applicant reported the matter to the ICAC, and as a result, that male was prosecuted for doing an act intending and intended to pervert the course of justice, and was sentenced to 18 months’ imprisonment.
So on those facts, the Court of Appeal considered that a discount of about 45% was appropriate.
The next case which Mr Marray pointed to was the case of Choi Wing Kuen CACC41/2006. In that case, the Court of Appeal was considering also the amount of discount to be given, and I pray in aid the words of Stuart-Moore VP at paragraph 17 of that judgment, where the Court of he said this:
“...having regard to the firm policy of this court to encourage defendants to co‑operate with the authorities in the interests of justice.”
And that is what a court has to consider when considering the relevant discount to be given where a particular defendant has co‑operated with the police, leading to a successful prosecution of another person.
So it is clear from the cases that if an accused person not only provides information to the authority leading to the arrest of criminals but also gives evidence against them, then the court would think a discount of up to 50% is justified, and that is from the third case referred to by Mr Marray, the Eriksson case, which is CACC454/2002.
So in relation to the 1st accused, the strongest mitigating factor is his plea and also his co-operation with the Customs officers.
As has been correctly pointed out, the guidelines laid down by the Court of Appeal in the Lau Tak Ming case [1990] 2 HKLR 371 for trafficking in heroin hydrochloride of between 50 to 200 grammes, a sentence of 8 to 12 years’ imprisonment is recommended.
In this case the amount is 186.44 grammes, and I would consider an appropriate starting point to be one of 12 years’ imprisonment.
Having considered the facts of this case and the extent of the 1st defendant’s co-operation with the Customs officers, I will give him a discount, and this is, of course, including his plea of guilty today, of a little less than 43%. So I will reduce the sentence of 12 years’ imprisonment to 6 years 11 months.
So the defendant will go to gaol for the 1st count for a period of 6 years 11 months.
In relation to the 2nd accused, he is aged 55, and has 29 previous convictions on 26 occasions, 17 of which are drug related. Of the 17 drug-related previous convictions, three were for trafficking, in 1983, 1991 and 1998. His last conviction was in 2008, when he was again sent to the drug addiction treatment centre for possession of dangerous drugs.
For his first trafficking of dangerous drugs conviction in 1983, he was sent to prison for 18 months, and for his last trafficking in dangerous drugs case in 1998, he was sentenced to prison for 12 months.
According to Mr Leung, who represents him in mitigation, the defendant has been a drug abuser ever since he was 25 years old. At the time of the offence he was on public assistance. There is nothing in his background that merits any discount in mitigation apart from the fact that he has pleaded guilty today.
Mr Leung mentioned in passing that it may be sort of a case of entrapment, he has said, because according to the facts, the 1st defendant originally had tried to contact a person called “Ah Fat” and only subsequently managed to contact the 2nd defendant.
I do not consider this assertion to have any merit at all, because, as Mr Andrews pointed out, the telephone number which the 1st accused was to use to call this “Ah Fat” belonged to a SIM card which was found on the person of the 2nd defendant upon his arrest. It is clear also from the facts admitted that the 1st defendant, when he spoke to the 2nd defendant, said to him that he was at that restaurant, and the words, “Would you come over to get the stuff?” So it was clear that the 2nd defendant knew what he was coming over to receive, because upon arrest he admitted he knew they were dangerous drugs and that they were for distribution.
So in relation to the 2nd defendant on Count 2, I had considered whether to increase the starting point in view of the fact that the defendant had a string of previous convictions relating to dangerous drugs. However, having considered that all these previous convictions, particularly the ones for trafficking, were relatively minor compared to this present offence, I decided not to do so.
So on the 2nd count, I consider an appropriate starting point is also 12 years’ imprisonment. He is entitled to one‑third discount for his plea, and so the sentence is reduced to 8 years.
The defendant is sentenced on Count 2 to 8 years’ imprisonment.
In relation to Count 3 on the possession of dangerous drugs, I consider that an appropriate starting point is 18 months’ imprisonment. I have to be conscious of the fact that the 2nd defendant had the drugs with him in his underpants when he went to the restaurant, and so he had taken those drugs out on the street, and the drugs were individually wrapped in 14 separate pellets, so there is a latent risk, and that is why I have adopted a starting point of 18 months.
Giving the defendant the benefit of his plea, I have discounted it by one-third, and so sentence him to 12 months’ imprisonment on the 3rd count.
I have to consider the totality principle in this case, and therefore for the 12 months’ imprisonment on Count 3, 6 months will be consecutive to the 8 years’ imprisonment on the 2nd count.
Therefore, the 2nd defendant will go to prison for a total of 8 years and 6 months.