In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the dangerous drug involved, personal background of the defendant and mitigation put forward on his behalf. I also have regard to the sentencing approach as stated in the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarised as follows:
The defendant was intercepted by police officers who were laying ambush nearby when he had left a residential flat. When the defendant was asked, he said there were dangerous drugs stored inside the flat. He also provided the password of the lock of the door to the flat and let the officers go in and conduct a search.
Upon search, a total of 1,886.9 grammes of a solid containing 1,481.6 grammes of cocaine was found. The drug was contained in 192 packets put inside different containers. The defendant was arrested. Under caution, he admitted that he was to deliver the dangerous drug to others and was promised $50,000 as reward.
In a subsequent video-recorded interview, the defendant gave further admission in more details. He said he came to know two persons in Europe when he returned to Hong Kong, agreed to their invitation to receive a package, unpack it and deliver the contents to others for a monetary reward, which he said the promised sum was 30,000 to $50,000. After he had received the package locally from a courier, he unpacked it, extracted the cocaine concealed in chocolate packing and repacked the drug into resealable bags. He was to await further instructions for further disposal of the drug.
I was told that the defendant is single, 28 years of age. He has studied up to Form 4 and was unemployed at the time of the arrest. He has criminal conviction records. In 2008, he was put on probation for an offence of AOABH and was ordered to perform community service for handling stolen goods. In 2012, he was convicted for possession of dangerous drug and was sent to DATC. In 2015, he was sent again to DATC for a conviction of criminal damage, and then imprisoned for a total of 28 months for conspiracy respectively to criminal damage and wounding.
In mitigation, learned counsel for the defence, Ms Lee, explained that the defendant committed the offence as he was under great financial stress at the time of social unrest and COVID. It is stressed that the defendant had been cooperative and made admission when stopped and after dangerous drug had been found. She said the defendant is remorseful and determined to turn over a new leaf. She also told the court that even at the time of the police action, the defendant was not aware of the exact quantity of drug in his possession as he only had the time to unwrap a small proportion of the items. Despite the defendant is not a person without criminal record, he is a filial son. His father, who is retired and not enjoying good health, is supportive to the defendant.
The defence also submitted a letter written by the defendant in which he expressed remorse. He also gave an account of how he came to commit the offence and asserted that he did not have the knowledge that he was to deal with dangerous drug until he talked with the other party after he had received the item. He said he will prepare for his rehabilitation by studying when serving the term. He said he had been earning to support his father who had injured during an occupational accident, and will continue to do so after he is discharged.
The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.
The total quantity of narcotic content involved in this case was 1,481.6 grammes of cocaine. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes. In the subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 23 to 26 years’ imprisonment should be considered if the narcotic content trafficked in is 1,200 to 4,000 grammes.
I see no reason to justify any departure from the sentencing tariff. I accept the submission of Ms Lee that the defendant occupied a role low in the trafficking hierarchy. I am of the view that only a starting point of 23 years and 3 months is sufficient to reflect the seriousness of the present case.
The defendant did not plead guilty at the earliest opportunity available. He only pleaded guilty after the case had been committed from the magistracy to the Court of First Instance for trial but before a trial date had been fixed. Ms Lee informed the court that the defendant only pleaded guilty at the time he did because when the case was in the magistracy, there had been indication from the bench that the case would be committed when the prosecution was prepared to do so. Ms Lee also urged me to take into account that the defendant had indicated his desire to plead guilty within slightly more than one month after committal.
Having regard to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, noting that the defendant had, at one stage, discharged the legal team as legal aid would be granted to him, and that at the committal hearing he was legally represented, I am of the view that the defendant is entitled to a discount of slightly more than 25 per cent for his guilty plea which he tendered at the time as stated.
In addition, there is information before me for which I am persuaded to give the defendant a further discount of about 2½ months. Having considered the whole circumstances including what learned counsel said on his behalf, in my judgment, this is the extent of discount the defendant is entitled to in this case.
So, defendant, please stand up. For the reasons I have mentioned, I sentence you to an immediate imprisonment term of 17 years.