CRIMINAL CASE NO. 261 OF 2010
COURT: The defendant has pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug.
The 1st count is, he is charged with having unlawfully trafficked in a total of 167.08 grammes of a solid containing 148.64 grammes of cocaine. Subsequently, in his home were found namely a total of 598.35 grammes of a powder containing 533.46 grammes of cocaine hydrochloride and 95.75 grammes of a solid containing 91.49 grammes of cocaine, which is then the subject matter of the 2nd count of trafficking.
The defendant was leaving his premises in Sha Tin when he was stopped and searched, and inside a shopping bag he was carrying were found the drugs, the subject matter of the 1st charge. The drugs were packaged in 12 gold-coloured laisee packets. When the police subsequently took the defendant to his premises for a search, apart from the drugs found which were the subject matter of Count 2 were also found two electronic scales, a plastic spoon, piles of resealable plastic bags, and a thermal plastic bag sealer. Obviously it was a place for packaging these drugs.
Under caution, the defendant admitted that the cocaine was his. He also disclosed that he had obtained the drugs about two days prior to the date of the offence and had divided them into a number of small packets, and he would await his boss’ instructions, and would deliver the drugs and get paid $300 for packing each small packet.
The retail value of the drugs seized amounts to about HK$853,000.
The defendant is aged 36 and has one previous conviction in 2004 which is not similar, and hardly near the gravity of the present offence. There is nothing unusual about his background or about his reason for committing these offences. Mr McGuinniety, a very experienced counsel, has said all he can possibly say on the defendant’s behalf. It is clear that the defendant fitted the profile for drug trafficking bosses, who would target people like the defendant to do the packaging and couriering of drugs for them; people like the defendant, who are desperate to get money and are attracted by this apparently easy way of earning money.
Hong Kong society, the police, the courts, are fighting a constant battle against these drug traffickers because of the immense harm that these drugs do to the people of Hong Kong. It is true that most of the people who come before these courts are merely cogs in the wheel and not masterminds, and these masterminds are protected by these cogs in the wheels because most of them do not feel it to their advantage to co‑operate with the police to have these masterminds arrested. So people like the defendant allow themselves to be used for what, to these drug traffickers, is very little money, but people like the defendant will give up many years of freedom because of this temptation of earning easy money.
I do accept that by his plea the defendant is showing his remorse, and he does deserve the full one-third discount for his plea.
Mr McGuinniety was involved in the case of Pedro Nel Rojas, and that case had laid down that sentencing for cocaine should follow the guidelines laid down for heroin in Lau Tak Ming. The guidelines lay down that for trafficking in 400 to 600 grammes of heroin or cocaine, it would merit a sentence of between 15 to 20 years’ imprisonment, and this would be after trial. Trafficking in amounts over 600 grammes is at the discretion of the court.
In this case, both amounts of cocaine in the two counts, when added up, amount to some 773.59 grammes of cocaine or cocaine hydrochloride, so the total sentence would take it above the 400 to 600 grammes guidelines laid down in Lau Tak Ming.
I have considered the case of R v Chang Chen Liu (1994) 3 HKC, which was an application for review of sentence, for a man who was convicted after trial and found to be guilty of trafficking in 713.11 grammes containing 595.37 grammes of cocaine hydrochloride and 491 millilitres of solution containing 15.36 grammes of cocaine hydrochloride. He was sentenced to 6½ years’ imprisonment, and on review, the Court of Appeal considered that a proper sentence for trafficking in that amount would be 20 years’ imprisonment after trial, but because it was an application for review, they then reviewed the sentence and sentenced the defendant in that case to 16 years’ imprisonment.
In this case, there is nothing unusual in the background of the defendant or any exceptional circumstances which calls for special consideration. So looking at the facts of the case and what has been said in mitigation, I would consider that a starting point of 20 years’ imprisonment is appropriate.
Because of the defendant’s plea, he is entitled to one‑third discount, and so the sentence is therefore discounted to 13 years and 4 months.
Accused present. Appearances as before.
COURT: My clerk reminded me I have not made it clear that it would therefore be 13 years 4 months on each count, to be served concurrently.
MR McGUINNIETY: Thank you.
MS CHAN: Thank you.