COURT: Huang Zhongqin confirmed his plea to two counts of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134, and admitted the Summary of Facts.
The particulars of the 1st count is that on 24 October 2022, near Lamppost No AA5397, Hung Hom Road, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 0.35 gramme of a solid containing 0.25 gramme of cocaine. The particulars of the 2nd count are that on 24 October 2022, at Room C, 4th Floor, Kai Wing Building, Whampoa Estate, No 53 Man Tai Street, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 60.87 grammes of a solid containing 44.96 grammes of cocaine.
The Admitted Facts
The facts admitted are that at about 1740 hours on 4 October 2022, the police mounted an anti-narcotic operation outside Kai Wing Building (“the Building”).
At about 1957 hours, the accused walked out from the entrance of the Building, a police officer approached the accused and revealed his identity. The accused immediately fled and two police officers gave chase. At 1958 hours, the accused was subdued near Lamp Post AA5397 on Hung Hom Road. Upon search, a cigarette box containing a resealable plastic bag containing the drug under Count 1 was found in the right front pocket of the pair of trousers worn by the accused. Also found in the accused’s person were a white mobile phone, a black mobile phone, cash of HK$460 and a key (“the 1st key”).
The accused was arrested and cautioned. He admitted that the pack of ‘Coke’ was for his own consumption.
Later on, a house search was conducted at the address as particularised in Charge 2. The police attempted to open the door of Room C by using the 1st key, but in vain. Later on, the accused took out another key (“the 2nd key”) from his underpants and handed it to the police officer. They successfully opened the door to Room C by using the 2nd key.
Upon search, the following items were found and seized on the table:
(i) 16 resealable plastic bags containing a total of 5.4 grammes of a solid containing 4.03 grammes of cocaine;
(ii) 1 resealable plastic bag containing a total of 23.7 grammes of a solid containing 17.3 grammes of cocaine;
(iii) 1 resealable plastic bag containing a total of 23.9 grammes of a solid containing 17.8 grammes of cocaine;
(iv) 1 plastic box containing a total of 7.87 grammes of a solid containing 5.83 grammes of cocaine;
(v) a pair of forceps, an electronic scale and a pair of scissors; and
(vi) a large number of resealable plastic bags.
The total quantity of the dangerous drugs found in Room C were 60.87 grammes of a solid containing 44.96 grammes of cocaine.
The accused was arrested and cautioned again. He admitted that some of the drugs found in Room C were for his own consumption and some were for giving to others in small bags. In 2 subsequent video-recorded interviews, the accused stated that:
(i) the plastic bag found in his trousers’ pocket contained drugs for his own consumption and it was given to him by another man the day before;
(ii) the drugs found on the table in Room C were cocaine which were for his own consumption and for delivery to others in small bags. He would use the equipment seized therefrom to divide the drugs into small bags;
(iii) he was instructed by a male whom he met in Kowloon Bay to do so;
(iv) this male would give instructions for delivering the drugs via the black mobile phone found on him;
(v) he started to do the job in September 2022 for monetary reward of $500 each time and was given HK$5,000 at the end of September 2022;
(vi) the HK$460 found on him was the remainder of the said $5,000 after he spent some of it as living expenses;
(vii) Room C was rented by him as his place of residence since September 2022.
Subsequent forensic examination revealed that a sample of DNA collected from one of the transparent bags of cocaine in Room C was found to match the DNA of the accused. The defendant’s fingerprint and palm print were found on the wall near the washing basin in Room C.
The Government Chemist later examined and certified the type and quantity of the drugs as particularised under Counts 1 and 2. The total estimated street value of the cocaine seized was around HK$52,833 (in powder form) and HK$102,972 (in crack form).
The accused admitted at the material times he was knowingly in possession of all the cocaine seized for the purpose of unlawful trafficking.
Mitigation
The accused is 20 years of age. According to his antecedent statement, he was born in the mainland. He received education up to Form 2 in Hong Kong and had worked as a waiter and a salesman after graduation. At the time of the offence he was unemployed. The accused has 1 previous conviction in October 2021, which concerns with unlawful possession of dutiable goods. A monetary penalty was imposed. For the present purpose, I will not take it into account.
Mr Ma for the accused urged this court to adopt a global approach in respect of both charges and to consider the quantity of the dangerous drugs as a whole. Mr Ma also confirmed that the accused will not claim ‘self-consumption’ in his mitigation.
Sentencing Principles
For many years, the community of Hong Kong has taken a severe view of drug trafficking. No doubt the drug has terrible consequences on the individual, there are also serious consequences for the community.
The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in cocaine.
The guidelines for trafficking in cocaine are laid down in Lau Tak Ming and Pedro Nel Rojas. The quantity of cocaine involved in Charge 1 is small and does not fall within the relevant guidelines. It is hence at the discretion of this court in adopting the proper starting point. As regards the quantity of cocaine involved in Charge 2, it falls within the band of 5 to 8 years’ imprisonment.
Appropriate Starting Point
As said, the quantity of cocaine in Charge 1 is small, the appropriate starting point should be 3 months’ imprisonment. As to Charge 2, which concerns with 44.96 grammes of cocaine, arithmetically, a starting point of 7 years and 4 months’ imprisonment is appropriate.
Mr Ma asked for the adoption of a global approach as regards the quantity of the dangerous drugs involved. As a matter of cross-checking, for 45.21 grammes of cocaine, that is the quantity of drugs under both charges combined, it warrants arithmetically a starting point of between 7 years 6 months’ imprisonment and 7 years 7 months’ imprisonment.
Role of the Accused
I made reference to the case of HKSAR v Herry Jane Yusuph. I heard submissions made by the parties. Mr Ma has tried his best to assist this court in identifying factors for the consideration of the role played by the accused. I accept that the accused cannot be categorised as an actual or direct trafficker.
According to facts admitted by the accused, Room C was his place of residence at the time of the offence, namely 24 October 2022. The accused said under caution that he rented Room C at a monthly rent of $7,800 since September 2022, namely, 1 month before his arrest. As disclosed in the antecedent statement, the contents of which were admitted by the accused, he was unemployed at the time of the arrest. These offences were discovered when he was approached by a police officer and that he was leaving the Building. As such, the accused had with him dangerous drugs when he left his place of residence. He admitted he started to deliver dangerous drugs since September 2022, namely at around the time he started to rent Room C. He received instructions via the black mobile phone he possessed, and that he would be paid $500 each time. As regards the dangerous drugs found in Room C, the accused said he would use the equipment found thereat to divide them into small bags of 0.36 gramme each. Apart from the equipment, a large number of resealable plastic bags were found and seized.
In view of such facts as admitted, I find that the accused was involved in the packaging and dissemination of the dangerous drugs seized. Therefore, the only reasonable inference is that the accused was manning Room C as a place to store dangerous drugs, and that he would conduct packaging and dissemination therein, see HKSAR v Islam Azharul, HKSAR v Islam Shafiqul, and paragraph 62 to 64 of Herry Jane Yusuph. I am of the view that the role played by the accused should be distinguished from somewhat who merely delivers dangerous drugs from one place to another. I will adopt an enhancement of 2 months’ imprisonment.
Disposition
I am of the view that there are no other aggravating
features in this case. The only and strongest mitigating factor is the timely plea for which a full one-third discount is warranted.
With reference to the discussion above, the starting point of Charge 1 is that of 3 months’ imprisonment, resulting in 2 months’ imprisonment upon your guilty plea. The starting point of Charge 2 is 7 years and 4 months’ imprisonment. Together with the enhancement of 2 months, the starting point is 7 years 6 months’ imprisonment. After discount, the sentence for Charge 2 is 5 years’ imprisonment.
I shall order 1 month out of Charge 1 be served consecutively to that of 5 years’ imprisonment in Charge 2.
Therefore, you shall be sentenced to 5 years and 1 month’s imprisonment.