COURT: The defendant pleaded guilty to two counts of trafficking in a dangerous drug, involving 160 grammes of cocaine for Count 1 and 768.14 grammes of cocaine for Count 2.
At about 12.40 pm on 10 June 2022, the defendant was observed by police officers to be walking out of a room on the 9th floor of Luk Tin House, Yan Tin Estate in Tuen Mun, which I will refer to as “the Room”, with his left hand carrying a white paper bag and proceeding to the 9th floor lift lobby. The defendant was then intercepted and searched. Amongst the items found on the defendant were eight transparent plastic bags containing 191 grammes of a solid containing 160 grammes of cocaine, and the keys to the Room.
Police officers then proceeded to search the Room and seized, amongst other items, the following:
(i) a vacuum sealing machine;
(ii) two electronic scales;
(iii) approximately 300 unused small resealable bags;
(iv) 12 transparent plastic bags containing 469 grammes of a solid containing 388 grammes of cocaine;
(v) one transparent plastic bag containing 491 grammes of a solid containing 371 grammes of cocaine;
(vi) one plastic container containing 10.3 grammes of a solid containing 9.14 grammes of cocaine; and
(vii) one calculator.
The defendant was then arrested, and under caution, the defendant said that someone had told him to store the dangerous drugs at home, await instructions and then deliver the drugs to others.
The total amount of cocaine seized on the defendant’s person and in the Room come to a total of 928.14 grammes, and had a street value of $970,847 in powder form and $1,459,754 in crack form.
The defendant was 40 years old at the date of the offence, and is now 42 years old. He is married and has two sons, now aged 13 and 10 years old. The defendant was previously working in a job concerning sale and delivery of household utilities. The defendant’s wife was previously running a beauty salon. The total income of the family deteriorated significantly during COVID. The defendant agreed to act as a courier for the drugs in question because of financial pressure.
I have read the letters written by the defendant himself, his wife and his son. I accept that the defendant is genuinely remorseful for his actions, and is viewed by his wife and son as a responsible husband and father.
The defendant has no previous criminal convictions.
Considerations of Sentence
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Applying the guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437, the relevant sentencing band for Count 1 is between 8 to 12 years’ imprisonment, and for Count 2 between 20 to 23 years’ imprisonment.
In HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal laid down guidance on how to sentence for multiple trafficking offences, where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations. The Court of Appeal said in paragraph 29, and I quote:
“The judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another. Separate sentences still have to be imposed and so the judge imposes the same sentence for the first offence, here the streetside possession on the applicant of 2 grammes of cocaine, as he does for the second offence. He determines the sentence by adding the quantity of drug of the first charge to the quantity of drugs the subject of the second charge, here the drugs found in the applicant’s residence. An appropriate sentence for this total quantity of drugs is then imposed for both offences with the sentence for the second offence made concurrent with the sentence for the first offence.”
Adopting that combined approach, for trafficking in a total of 928.14 grammes of cocaine, a mathematically calculated place within the relevant sentencing band would be 21 years and 7 months’ imprisonment, after rounding down.
On the evidence, there is nothing to suggest the defendant had any further role beyond the culpability of an ordinary courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting point, and that is the starting point I would adopt for both Counts 1 and 2.
I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Although I accept that the defendant is genuinely remorseful and had taken steps to improve himself whilst in prison, personal circumstances in cases of this nature do not constitute mitigating factors and cannot provide the defendant with any further sentencing discount.
The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 14 years and 4 months’ imprisonment in respect of each count, after rounding down. The sentences in respect of both counts will be served concurrently.
Defendant, I sentence you to a total of 14 years and 4 months’ imprisonment.