COURT: The defendant is charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in respect of 2,356 grammes of a powder containing 717.8 grammes of cocaine.
He pleaded guilty to this offence at the first opportunity in the magistracy and was committed to the Court of First Instance for sentence. At the time of his plea, he also admitted the truth of the Summary of Facts which set out the circumstances of the offence. Before me, he confirmed both his plea and his admission of that Summary of Facts.
The Summary of Facts reveals that on 31 May 2018, at about 2137 hours, the defendant was intercepted by police outside Sunrise House, No. 21-31 Old Bailey Street in Central. He was carrying a suitcase and was holding a mobile phone. Officers revealed their identity and enquired about the suitcase he was carrying. The defendant spoke in Cantonese to the officers and informed them that the suitcase belonged to him and that he was going to a friend’s home. Police asked to search his suitcase but as it was locked, they asked the defendant to provide the passcode to it, which he did.
Inside the suitcase, the police found a number of items, amongst which were a plastic bag containing 751 grammes of powder containing 351 grammes of cocaine; a plastic bag containing 815 grammes of a powder containing 286 grammes of cocaine; a plastic bag containing 790 grammes of a powder containing 80.8 grammes of cocaine; and 936 grammes of sodium bicarbonate. All of the dangerous drugs together with all the other items were contained within a brown recycle bag.
When arrested for trafficking in a dangerous drug, the defendant stated under caution that the drugs did not belong to him and a friend had paid him money to bring them upstairs. The defendant further stated that the dangerous drugs were cocaine. When asked what he meant by the expression “bring upstairs”, the defendant pointed at Sunrise House and said that he meant the 19th Floor of that building. The defendant said he could not tell which flat it was but he knew how to go there. He was asked if he was willing to lead the officers to the flat and he stated that he was willing to do so.
The police officers escorted the defendant to the 19th floor of Sunrise House and the defendant indicated that the flat to which he was intending to bring the drugs was Flat B. The door of Flat B was locked, and when the police knocked on it, nobody answered. Officers eventually broke into the flat and found no one inside, nor was any further dangerous drug found within the premises.
The defendant participated in a video-recorded interview on 1 June 2018. In that interview, he said that the friend for whom he was bringing the drugs was a person called ‘Atiq’, and that Atiq had offered him $2,000 to courier the drugs to this flat and had provided him with $500 for the taxi fare from Tsim Sha Tsui to Old Bailey Street. He said that between 8 and 9 pm on the day prior to his arrest, that is, 30 May 2018, Atiq called him and asked him to meet him outside the Kowloon Shangri-La Hotel, and they then went together to the InterContinental Grand Stanford Hotel and booked Room 492 under the defendant’s name, using the defendant’s ID card. Atiq gave the defendant $1,800 to pay for the room. Atiq then asked the defendant to wait for a black friend of his, which he did.
After the black man left, another friend called “Yasar” arrived and gave the defendant a bag and a suitcase to carry the cocaine in. There was also some adhesive tape for taping it all together. Other than this adhesive tape and the bags within the suitcase that were used to contain the cocaine, everything else was provided later by the black man at the staircase of the 16th floor of the Chungking Mansion.
After obtaining the cocaine, the defendant contacted his friend Atiq who instructed him to go straight back to Flat B. The defendant stated that he wanted to testify against Atiq, Yasar and the ‘black guy’.
The estimated street value of the cocaine seized, as of May 2018, was approximately $2,556,260.
The Summary of Facts concluded with an admission by the defendant that he accepted that he was trafficking in the cocaine together with Yasar, whose full name was Yasar Shah and Atiq, whose full name was Rai Atiqullah Khan.
The defendant was born in Hong Kong on 6 March 1997. He has a younger brother and his parents are still alive. His father was born in Nepal but moved to Hong Kong and has been working in Hong Kong as a construction worker from 1996 up to the present day. His mother was born in Hong Kong. The family is financially stable and has a long social association with Hong Kong as evidenced by the fact that the defendant’s grandfather served in Hong Kong with a Gurkha Regiment of the British Army from 1960 to 1976.
The defendant has a clear criminal record. He was 21 years of age at the time he committed the offence. And now, when appearing before me for sentence, he is 24 years of age. He completed primary and secondary school in Hong Kong and went on to study at the Hong Kong Culinary Academy from September 2017. He failed to complete this course because of his arrest for the present offence. Mr Kelly informs me that the defendant’s parents continue to be very supportive of him and speak to his good character prior to his involvement in this offence. Within the Nepalese community, the defendant has a favourable reputation and those who know of him speak of his good deeds. He is not an abuser of dangerous drugs.
The law relating to the sentencing of drug trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court, set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.
Whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrent and punishment, there was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve reasonable consistency in general but not at the expense of preventing justice from being done in a specific, individual case. They were not to be regarded as straitjackets by sentencers and did cater for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment.
The first step is to identify the relevant guideline band applicable to the quantity of dangerous drugs concerned. In respect of the quantity of cocaine in which the defendant trafficked, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. This case lays down a sentencing band of 20 to 23 years’ imprisonment for quantities of 600 grammes to 1,200 grammes of cocaine narcotic.
The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of a courier transporting drugs from one place to another in Hong Kong. There is nothing in the evidence placed before me to distinguish this defendant from other couriers performing similar duties of transporting drugs around Hong Kong for those that are involved at a more senior level in the drug trade. There is no evidence that he was actually dealing in dangerous drugs and his involvement in the drug trade is confined to that of a low level courier, merely following the instructions of those employing him. I assess his culpability and role at the same level as any other low level courier.
The third step is to identity where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band (whether above or below) given the circumstances of the offence and the role of the defendant. In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors. The assessment made in the second step is also relevant to determining where within the band or outside the band that the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
In respect of this defendant, trafficking in 770.8 grammes of cocaine, a mathematically calculated place within the 600 to 1,200 grammes of narcotic band of 20 to 23 years’ imprisonment would be 20 years and 7 months’ imprisonment. Taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine narcotic in which he trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 20 years 7 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. It is not asserted by the prosecution that there is present in respect of this defendant any aggravating factor which would justify an enhancement of this mathematically calculated place within the band.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from a notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. The one-third discount which an offender receives for a timely plea of guilty will generally encompass the bulk of mitigating factors available to the defendant, such as prior good character, remorse and impecuniosity as a motivation for the offence.
The defendant is entitled to a one-third discount from his timely plea of guilty. In addition to pleading guilty, the defendant has, from the very moment of his arrest, unhesitatingly assisted the police in investigation of this offence. He has named the persons who were employing him as a courier and he has given a witness statement which enabled those persons to be prosecuted with the defendant appearing as the main prosecution witness against them. Their trial, over which I presided, has just concluded with their acquittal.
It is not suggested by the prosecution that their acquittal was due in any way to the failure of the defendant to live up to his promise to assist the prosecution by telling the truth in the trial of his accomplices. His assistance to the prosecution by testifying as a witness for them entitles him to receive a discount of 50 per cent.
However, Mr Kelly asserts that by testifying for the prosecution, the defendant has exposed himself to the risk of harm. Throughout the period of his remand in custody for this offence, the defendant has received threats, intimidation and inducement to resile from his offer to assist the prosecution. These have been reported to the police and have led to the 1st defendant in the trial in which this defendant testified being prosecuted for perverting the course of justice.
It cannot be assumed that just because verdicts of acquittal had been entered in the trial in which he testified, the risk of harm to the defendant has completely evaporated. No actual harm has come to the defendant or to his family, nor has it proven necessary for the defendant to be isolated from the rest of the prison community and put into protective custody. Nevertheless, Mr Kelly prays in aid the comments of Stock JA in HKSAR v W [2004] 3 HKC 376, where in giving the judgment of the Court of Appeal, he said at paragraph 19:
“The pressure placed on him not to testify was heavy, and his determination not to succumb to that overt pressure deserves some extra credit.”
Mr Kelly submits that I should exercise my discretion to give a total discount of somewhere between 50 to 60 per cent in recognition of the risks to which this defendant has been exposed and will continue to be exposed, and the resilience he has shown in resisting the threats and intimidation that he had experienced so far. I should also mention that the defendant will testify against one of the persons who threatened him on a charge of attempting to pervert the course of justice.
Finally, I note that Ms Lee for the prosecution informs me that the prosecution accepts that the minimum discount the defendant should receive is 55 per cent. After carefully considering the submissions of Mr Kelly on the mitigating factors present in this case, I grant the defendant a total discount of 55 per cent. This discount produces a sentence of 9 years and 3 months’ imprisonment.
Whilst he has been in prison, the defendant has assisted Father John Wotherspoon in his anti-drug campaign. Father Wotherspoon has written a letter on the defendant’s behalf. And on the basis of what he set out in that letter, I am willing to give the defendant a further discount of three months. This brings the sentence down to 9 years’ imprisonment.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, just and balanced in all the circumstances of the offence and the offender. This may be more relevant to cases involving multiple offences, but in my view, the Court of Appeal was not limiting the sixth step to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just.
In this respect, I note that the defendant was only 21 years of age at the time of the offence and had hitherto lived a life that had been free of any breaches of the criminal law. He was lured into committing this offence by someone he considered a friend and his arrest is surrounded by suspicious circumstances which cannot be explained without a great deal of speculation. The suspicious circumstances are:
(1) the purity of the cocaine is unusually low;
(2) part of the powder was not in fact cocaine at all but was bicarbonate of soda; and
(3) the defendant was instructed to deliver the drugs to the flat at a time when it was locked and no one was present in the flat to receive the cocaine.
Mr Kelly suggested that these suspicious circumstances suggest that this defendant may have been entrapped into committing this offence. In making this submission, he does not suggest that the police in any way behaved improperly and he is correct to so concede. Nevertheless, relying upon the English Court of Appeal of Birtles [1969] 53 CAR 469, he argues that I should find there exists a real likelihood that the defendant was encouraged to commit this offence which otherwise he would not have committed.
Birtles was applied by our Court of Appeal in HKSAR v Cheung Yun Kei [2001] 4 HKC 52 to a defendant who may have been encouraged to commit the crime by an informer. In that case, the Court of Appeal said that entrapment did not have to be committed by the police but could be the result of actions of an informer. In a separate concurring judgment in that appeal, Keith JA said at page 59 of the report:
“If entrapment is to be established as having occurred, what is the standard of proof required? In his judgment in Birtles, Lord Parker CJ referred at different times to ‘a real possibility’ and ‘a real likelihood’ of the offender being encouraged to commit an offence which he would not otherwise have committed. I suspect that the phrase ‘a real possibility’ reflects what Parker LJ truly had in mind, because it would be wrong to deny the offender the benefit of any real doubt on the matter, even if it could not be said that entrapment was more likely than not to have occurred.”
In that case, the Court of Appeal reduced the applicant’s sentence by one year to reflect the element of entrapment. I am satisfied that the circumstances in the case of the defendant before me justify me reducing the final sentence to allow for the real possibility that there was entrapment. By so doing, I can ensure that the sentence is not a crushing one that leaves the defendant feeling aggrieved that he has been treated unfairly by the criminal justice system, I sentence the defendant to 8 years’ imprisonment.
(Discussion re sentence calculation)
Mr Limbu, I sentence you to 8 years’ imprisonment.