CRIMINAL CASE NO. 12 OF 2011
COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely, 1.98 kilograms of a solid containing 1.17 kilograms of cocaine.
The facts, which have been admitted, are that the police officers saw the defendant outside the Harbour Front Horizon All Suites Hotel and he was carrying a rucksack and a mobile phone at the time. They intercepted the defendant and asked the defendant to produce his identity document. The defendant said that he had lost his passport days before during a taxi ride and when asked about why he was at the hotel, the defendant said he arrived at the location by mistake. The defendant said he had no fixed abode in Hong Kong. He lives in China.
The police officers, feeling suspicious from these replies, then demanded a search of the defendant and a Harbour Front Horizon All Suites Hotel room key card was found in his trouser pocket. Upon a check with the hotel the police officers discovered that the key card found on the defendant related to room 1801 of the hotel. The officers then opened the room with the key card found on the defendant. Inside the room were three other males who had not been subsequently charged. The defendant’s French passport, and I have been shown a copy of it, is a temporary passport which is a passport only valid for one year, was found on a TV cabinet.
Upon a search of the room police officers located a safe inside a wardrobe. The defendant claimed he did not know the code number to access the safe. The safe was subsequently opened by the hotel and it was confirmed by the hotel that the defendant was a registered guest of the room. Inside the safe were found four blocks of suspected dangerous drugs, the subject matter of the present charge.
It was also found inside the room that the defendant had paid the electricity deposit on 16 March 2010 for the room and he had subscribed to the Broadband Internet service on 24 March 2010 and paid the monthly licence and electricity fee on 12 April 2010. The defendant was a registered licensee of the room and was entitled to occupy the room from 16 March 2010 to 16 September 2010, which is for a period of six months. The defendant was brought back to the Hung Hom Police Station but because of the inability to locate a Hebrew interpreter, as the defendant said he did not speak English, no record of interview was taken from the defendant.
The drugs were subsequently examined and certified to be 1.98 kilograms of a solid containing 1.17 kilograms of cocaine. The street value of these drugs was estimated at about $1.9 million. The four plastic bags which contained the drugs were sent for fingerprint examination and the defendant’s fingerprint and thumb print were lifted from three of the bags containing the dangerous drugs.
From travel movement records it was shown that the defendant was a frequent traveller to Hong Kong and the defendant last came to Hong Kong from China on 6 May 2010, at 1426 hours, via the Lo Wu Control Point.
The defendant is aged 25 and has a clear record in Hong Kong. In mitigation, Mr Yip, on his behalf, said that the defendant is a businessman and he does trading between China and Israel. When he was arrested and found to have two digital scales in his rucksack, in fact those scales were samples which he was taking from China to show his client. It is confirmed by Mr Melwaney that in relation to those digital scales, there is no evidence that it is connected with this drug‑trafficking offence.
Mr Yip also produced testimonials from several distinguished persons, particularly the Chief Rabbi of China, who has distinguished himself with service as a voluntary worker in the Correctional Services Department for 20 years. The Chief Rabbi speaks highly of the defendant and says that this offence was due to the poor judgment of the defendant and that he was remorseful and urges this court to be lenient because of the defendant’s inability to speak Chinese and limited ability in speaking English and that he would be very isolated during his time of incarceration.
The Rabbi of Guangzhou also testified to the character of the defendant, saying that he has known the defendant for five years and, again, testifying to the fact he as a good young man.
Mr Yip submitted that there are no aggravating features in this case, which I accept. There is no evidence of any international element in this case and the mitigation advanced on his behalf was that he was only storing the drugs for a fee, which he was going to be paid $4,000.
The room in which he was living in, in Hong Kong, was rented by a Hong Kong Chinese person and the defendant was a registered user of that room.
Trafficking in dangerous drugs has long been a major problem in Hong Kong. It has contributed to a lot of social problems in Hong Kong and tragic circumstances have been caused to drug addicts and their families because of addiction to drugs. The authorities in Hong Kong are fighting a losing battle every year against these drug‑traffickers and that is why the courts have always said that severe sentences have to be handed down, not only as a deterrent to the offenders who have been caught, but also as a deterrent to others around the world who, for money, or recompense, for gain, traffic in dangerous drugs in Hong Kong. Cocaine is a particularly serious drug.
The Court of Appeal has laid down that sentencing for cocaine should follow sentencing for heroin. A recent case which Mr Yip correctly pointed out is the case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. The Court of Appeal laid down guidelines for trafficking in dangerous drugs, after trial, for quantities of 600 to 1,200 grammes, imprisonment of 20 to 23 years was recommended. In this case, the quantity of cocaine found was 1.17 kilograms which would fall within the 20 to 23 year guideline.
Mr Yip has tried to urge upon this court to consider that the defendant played a minor role in this offence. It is not a minor role because he was storing the drugs and it is just as important a role as someone selling the drugs. It is true there are no aggravating features that show that the defendant was a mastermind or a senior person within any drug-trafficking syndicate.
The defendant has no previous convictions in Hong Kong. So in assessing sentence, I also take into account the fact that the defendant is a young man and is a foreigner in Hong Kong and does not speak Chinese and so his incarceration would be more difficult than for a local person.
So within the guidelines that have been laid down by the Court of Appeal in Abdallah, I consider that an appropriate starting point for sentence for 1.17 kilograms would be in the region of 21½ to 22 years. Because of the factors which I have mentioned, I am prepared to take that lower view which is 21½ years’ starting point. So with the one-third discount for an early plea, which also demonstrates the defendant’s remorse, the sentence is then deducted by one‑third and is therefore reduced to 14 years and 4 months. So the defendant will go to prison for 14 years and 4 months.