COURT: Before me are two cases. It is the consensus of parties, and which I agree is entirely appropriate, that the two cases should be heard together since they arose from the same set of facts.
The defendant in HCCC335/2012, whom I will call D1, as he was so listed in the original charge, pleaded guilty before me on the first day of trial.
The defendant in HCCC387/2012, whom I will call D2, pleaded guilty before a magistrate and was committed to the Court of First Instance for sentence. Today he confirmed before me his guilty plea and admitted the Summary of Facts. He stands convicted of the charge for committal.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of each defendant, and mitigation put forward on their behalf.
Facts
At about 3 am on 4 April 2012, police officers saw D1, D2 and a woman coming out from an apartment on the 1st floor of the front portion of 30 Tung Choi Street. They walked downstairs, then D1 and the woman walked towards Nelson Street. D2 walked towards Shantung Street.
Police officers intercepted the three of them. D1 put up a struggle and tried to escape. He was subdued.
At the staircase of the 1st Floor, 67-69 Tung Choi Street, a body search was conducted. Two packets containing a total of 200 smaller packets of cocaine were found concealed in the waistband of D1’s underpants.
Under caution, D1 said, “Ah Sir, these two packets of cocaine belonged to me. They have nothing to do with my girlfriend.”
The quantity of the dangerous drug found on D1 was 43.30 grammes of a solid containing 31.57 grammes of cocaine.
After D2 had been intercepted, a bunch of keys was found on him. He was brought to Flat C of the apartment where he claimed he had been living. The keys were found fit to open the door to the flat.
Inside the flat there were, amongst other things, folding chairs and a soft storage box. Four packets of cocaine and 13 stacks of empty resealable plastic bags were found inside the storage box. Two packets of cocaine were found on the top of a chair. A tray containing traces of solid, together with a cutter and an electronic scale, were found on the top of another chair.
Under caution, D2 said, “Ah Sir, all the coke was taken by ‘Ko Fei’ to the flat for packing. It had nothing to do with me.”
The six packets of cocaine were confirmed to have the following content: 53 plastic bags containing 12.10 grammes of a solid containing 9.47 grammes of cocaine; 51 plastic bags containing 11.44 grammes of a solid containing 8.94 grammes of cocaine; a plastic bag containing 23.68 grammes of a solid containing 17.25 grammes of cocaine; a plastic bag containing 17.30 grammes of a solid containing 11.39 grammes of cocaine; a plastic bag containing 16.16 grammes of a solid containing 10.96 grammes of cocaine; and a plastic bag containing 24.05 grammes of a solid containing 16.31 grammes of cocaine.
In total, there were 104.73 grammes of a solid containing 74.32 grammes of cocaine.
Background of the Defendants
D1
I was told that D1 is now 21 years of age. He has only received education up to Form 1 and had worked as a driver and kitchen apprentice. He was unemployed at the time of the offence. He had been convicted on four previous occasions: in 2005, for a charge of wounding or inflicting grievous bodily harm, he was put on probation; in 2006, for a charge of AOABH, he was sentenced to receive training at a rehabilitation centre; in 2008, for a charge of trafficking in a dangerous drug, he was sentenced to training centre; in 2012, for a charge of criminal intimidation, he was sentenced to a fine and 2 months’ imprisonment, suspended for 24 months. In committing the present offence, this suspended sentence was breached.
D2
D2 is now 24 years of age. He had attended Form 5 education and had worked as a waiter. He was unemployed at the time of the offence. He also does not have a clear record. However, his only conviction has nothing to do with dangerous drugs. He was convicted in 2006 for a charge of wounding or inflicting GBH and was sentenced to 120 hours of community service order.
Mitigation
D1
Counsel for D1, Mr Cheng, produced to me letters written by the defendant and his father, as well as the medical report of his mother, showing that she had undergone a surgical operation. I was told that she was suffering from cancer. His father is aged over 70. I was also told that the family support gives D1 strong motivation to rehabilitation, and he will undertake a course in food and beverage, hoping that he can start a new page of life to be a chef after serving his sentence.
Mr Cheng stressed that D1 had made full confession upon arrest. He also urged me to have regard to totality of sentence and not to activate the suspended sentence.
D2
Counsel for D2, Mr Tam, produced to me a letter written by the defendant. He urged me to take into account that the defendant had pleaded guilty as early as the case was still being dealt with by a magistrate. He told me that the defendant was exploited by friends and committed the present offence foolishly for a small reward.
He told me that the defendant is now deeply remorseful and promised to turn over a new leaf. He said this was an isolated incident, and it is highly unlikely that the defendant will commit the offence again. The defendant has never committed any offence related to dangerous drugs before.
Sentence
The dangerous drug involved in both cases was cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guideline in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable.
In both cases I see no reason to depart from the tariff.
Starting Points
HCCC335/2012 - D1
The narcotic content is 31.57 grammes of cocaine.
In all the circumstances, I am of the view that a starting point of 6 years and 9 months is appropriate. This starting point takes into account a 3-month enhancement by reason that this is the second conviction of a defendant of the offence of trafficking in dangerous drugs.
HCCC387/2012 - D2
The total narcotic content is 74.32 grammes of cocaine.
In all the circumstances, I am of the view that a starting point of 8½ years is appropriate.
Both defendants pleaded guilty, and each is entitled to a one‑third discount. In all the circumstances, I am of the view that this is the extent of discount which each defendant is entitled to.
D1, Lui Chi-kin, please stand up. I sentence you to 4½ years’ imprisonment. You committed this offence in breach of a suspended sentence. Despite what your counsel said on your behalf, I see no reason why the suspended sentence should not be activated. You committed the present offence, a much more serious offence, just three months after the suspended sentence had been imposed on you. I activate the 2 months’ sentence imposed on you in KTCC5427/2011.
Having considered totality, I order the present 4½ years’ imprisonment to run wholly consecutively to this 2 months’ imprisonment, making a total sentence of 4 years and 8 months. You may take a seat.
D2, please stand up. I sentence you to 5 years and 8 months’ imprisonment.