COURT: The defendant faces two charges. The 1st charge is trafficking in a dangerous drug, which alleges that he, on 28 March 2023, outside No. 225 Tsz Tin Tsuen, Tsz Tin Road, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, a total of 71.9 grammes of a solid containing 62.1 grammes of cocaine. The 2nd charge is one of conspiracy to traffic in dangerous drugs. This charge avers that the defendant, between 1 March 2023 and 28 March 2023, both dates inclusive, in Hong Kong, conspired with other unknown persons to unlawfully traffic in cocaine. He pleaded guilty at the Magistrates’ Court in August this year and was committed for sentence before this court. He appears before me today for that purpose.
The facts giving rise to the two offences are these.
On 28 March 2023, in the afternoon, the police mounted an anti-narcotics operation and laid ambush outside the location the subject of the 1st charge. At around 3.40 pm, the police spotted the defendant holding a white recycle
bag, walking past the public toilet of Tsz Tin Tsuen, Tsz Tin Road. The defendant was then intercepted for enquiry outside the public toilet.
Upon search, the police found inside the recycle bag three plastic packets containing a total of 71.9 grammes of a solid containing 62.1 grammes of cocaine. The police also found two keys and a mobile phone on the defendant.
Upon arrest, and under caution, the defendant admitted having been instructed by his boss to deliver the cocaine to others. In a subsequent video-recorded interview, the defendant stated under caution that he had been engaging in trafficking in cocaine for around a month. He became acquainted with the boss while playing mobile game. He had no knowledge as to the boss’s contact or identity.
The modus operandi was that the defendant would receive instructions from his boss through anonymous calls to collect a big bag containing around 10 small bags of cocaine, each weighing around 24 grammes, from a white private car outside Tsz Tin Tsuen driven by unknown persons. After this, he would be asked to deliver small bags of cocaine, usually one to two bags each time, to unknown persons driving another white private car.
He last collected 10 small bags of drugs about one week before his arrest. At the time of the arrest, he had been instructed to delivery the cocaine to a white private car. Although he was promised that he would be paid $500 for each small bag of drug delivered, he had not yet received any monetary reward at all.
He further told the police that he had rented the house for a monthly rent of $7,800, and that he had exclusive possession of the keys to that house. He admitted to having a habit of consumption of dangerous drugs, including cannabis and cocaine.
The total street value of the cocaine seized is around HK$96,202.
The defendant admits that at all material times he knowingly possessed all the cocaine seized from him for the purpose of unlawful trafficking.
He further accepts that between 1 March 2023 and 28 March 2023, he had conspired with other unknown persons to unlawfully traffic in cocaine.
Defendant’s background
The defendant is now 23 years old. He is single, born in Hong Kong, and he had received education up to Secondary 6 level. He grew up in a single-parent family under his mother’s care until the age of 12 when his mother remarried. Since then, he has resided with his mother and stepfather in a public housing estate in Kai Tak, Kowloon.
His mother works as a clerk and has recently undergone a spleen surgery, whilst his stepfather works at a Hong Kong-style tea restaurant.
After the defendant’s arrest, I am told that his parents have been striving hard to continue working in order to pay for the defendant’s insurance premium and credit card debts from overdraft.
As regards the defendant himself, he was unemployed at the time of the arrest. I am told that he had aspired to become a hairdresser, and that he had previously worked as a part-time hair salon assistant in 2018 whilst he was still studying in Form 5. He had joined apprenticeship thereof after completing Form 6 earning a monthly income ranging from 10,000 to $15,000. In 2021, following the close-down of the salon, he lost his job.
The defendant had one drug-related previous conviction for possession of dangerous drug in 2021, for which he was sentenced to the drug addiction treatment centre. He was admitted to the treatment centre in August 2021 and was discharged in November 2022. Upon his discharge, I am told that his relationship with the family had deteriorated because of this drug abuse problem of his, prompting him to move out to live alone at the ground floor of the house the subject of the charge two months before the arrest.
In mitigation, Ms Chan, appearing for the defendant, told me that the defendant committed the present offence because he had been lured by others leading him to succumb to the proposal to earn quick and easy money by subletting a part of his premises for storage of dangerous drugs on behalf of the boss in exchange for $500 for each delivery of drugs as told by the boss. He believed naively that this income could help him relieve his monthly rent and other personal expenses.
I am told in mitigation that after the defendant had become unemployed he moved out from his family home and spent considerable time in playing online games which was where he met the boss. Knowing that he was living alone, the boss asked him to help traffic in the dangerous drugs. I am told that the defendant was initially unaware that the items he was collecting for the boss was cocaine, but he came to realise this upon receiving the items. Thus, he knowingly involved himself in trafficking in the dangerous drugs in question.
It is submitted on behalf of the defendant that he is genuinely remorseful for his wrongdoing, and he has since matured upon his remand in custody. I am told that the defendant is now committed to turning over a new leaf and has, in the course of the remand, distanced himself from drug addiction.
For his previous conviction for possession of dangerous drug, the court is urged not to consider any aggravation in sentence. In any event, the previous conviction was one for possession, not trafficking, and the present case is the first case of trafficking and conspiracy to traffic in which the defendant was involved.
As for the 2nd count of conspiracy, Ms Chan made the point that the defendant had given frank and full admission to the police on his arrest as to the details of the conspiracy, without which the prosecution might not be able to substantiate Charge 2 on the evidence. Hence, Ms Chan invites me to exercise my discretion to impose a lighter sentence on that count.
The court has also been provided with a mitigation letter written by the defendant’s mother describing the upbringing of the defendant and how he became involved in drugs. The mother pleads for leniency on the defendant’s behalf. Be that as it may, it is well established that personal circumstances, including the plight that may be brought upon the family, are of little weight as a mitigating factor in relation to an offence as serious as the present.
Sentencing considerations – Charge 1
The approach in relation to sentencing drug trafficking offences has been set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as complemented by HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 which involves a six-step approach.
For Charge 1, the drugs involved is 62.1 grammes of cocaine. The applicable sentencing tariffs are contained in HKSAR v Lau Tak Ming & Ors [1990] 2 HKLR 370, read in conjunction with Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For a quantity of between 50 and 200 grammes of cocaine, a starting point of between 8 and 14 years’ imprisonment is warranted. On a strict arithmetical calculation, the starting point for 62.1 grammes of cocaine is 8 years and 3 months.
I am prepared to accept Ms Chan’s submission that the defendant’s role was one of a storekeeper or a carrier of drugs falling within the bottom tier of the trafficking hierarchy. On the evidence, there is nothing to suggest that the defendant had any further role beyond the culpability of a mere storekeeper or carrier. Hence, there is no basis for me to depart from the arithmetically-calculated starting point, which would be the notional starting point I would adopt for Charge 1.
As mentioned, the defendant has one previous conviction for possession of dangerous drugs. Apparently he had not learnt, any lesson from his previous experience with the court. That being said, the conviction on that occasion was not one for trafficking and, hence, does not, in my view, warrant any aggravation in sentence in this case.
There is no other mitigating factor except his early guilty plea for which he is entitled to the full one-third discount. Hence, on Charge 1, the appropriate sentence would be one of 5 years and 6 months, upon reduction for the one-third.
Charge 2
Turning to Charge 2, as the Court of Appeal held in HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799 where a conspiracy to traffic in an unspecified quantity of dangerous drugs was concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Unless clear-cut, such inferences and assumptions would inevitably lean in favour of the defendant.
As admitted by the defendant in the video-recorded interview, the conspiracy the subject of Charge 2 lasted for about one month, during which he had made delivery of cocaine for four times. On each occasion he, together with others, would arrange for 10 small bags of cocaine, each weighing around 24 grammes. The total quantity trafficked on each occasion could thus be roughly worked out to be 240 grammes of cocaine.
Regarding the actual narcotic content for the purpose of calculation for Charge 2, I accept Ms Chan’s submission that given the purity of the cocaine found on the defendant the subject of Charge 1, it’s approximately 86 per cent. An assumption can be made in the defendant’s favour that the cocaine trafficked on each of the four occasions the subject of the conspiracy charge would be of roughly the same purity.
I am also prepared to accede to Ms Chan’s suggestion to give the defendant the benefit of doubt and accept that the three packets the subject of Count 1 were part and parcel of the larger lot of 40 packets that, according to the defendant’s admission, had been dealt with by him during the conspiracy period.
Hence, for the purpose of calculating the sentence for the conspiracy charge, Count 2, I would adopt 37 packets of cocaine with the purity of 86 per cent as the basis. That would give an aggregate total of 763.7 grammes as the amount of the narcotic cocaine that had been trafficked during the conspiracy period. For that quantity, the mathematical starting point is 20 years and 9 months.
Furthermore, I accept that but for the defendant’s disclosure of his involvement, the police would not have known about the details of the conspiracy. For that, the court is entitled to exercise its discretion to allow for a small reduction in the sentence to reflect that mitigating factor.
Global approach
In my view, it would be appropriate and sensible to adopt a global approach, adding up the drugs on both charges for the purpose of calculating the overall starting point. In that process, the court also pays heed to the principle of totality.
On a global approach, the total quantity of cocaine involved in both charges was around 825.8 grammes; namely, 62.1 grammes of cocaine narcotics for Charge 1, plus the aggregate total of 763.7 grammes of the cocaine narcotics calculated for the purpose of the conspiracy charge.
For trafficking in that whole quantity of cocaine, the starting point would be slightly over 21 years’ imprisonment. To be exact, 21 years and roughly 2 months.
I am prepared to round the figure down to 21 years, partly to account for the fact that the court has discretion to reduce the sentence to take account of the mitigating circumstance that the defendant has provided the details of his involvement in the conspiracy to the police under caution without which Charge 2 may not be able to subsist.
As mentioned earlier, I accept that the role played by the defendant was that of a storekeeper or carrier at the bottom tier of the drug-trafficking hierarchy. Although he was required to collect and bring the drugs from the place of storage at his home to the public toilet outside his premises, I accept the submission made on his behalf that it was just a short journey as the public toilet was situated at the entrance of the village road.
There is also no suggestion that the defendant had any idea where or to whom ultimately the drugs would be distributed. He was, in that sense, a carrier of the drugs, keeping the drugs in his custody for the short delivery to the public toilet until the next handler came into the picture to take the drugs from him. For that reason, I will not enhance the starting point for sentence on account of his role or culpability.
There are no other mitigating factors except his early and timely plea. He is entitled to the full one-third discount, which brings the overall sentence down to 14 years. This overall sentence is, I consider, a fair and just sentence in all the circumstances of the offence and the offender.
As a result, these are the sentences for the individual charges as well as the overall sentence I shall impose.
For Charge 1, the starting point adopted is 8 years and 3 months reduced to 5 years and 6 months.
For Charge 2, the starting point is one of 20 years and 9 months which is reduced to 13 years and 10 months on account of the plea.
To arrive at the total sentence of 14 years, which I consider fair and just, I would order 2 months of the sentence on Count 1 to run consecutively to the sentence on Count 2. That would make the total of 14 years’ imprisonment.
So defendant you are sentenced to an overall term of 14 years’ imprisonment.