COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug in the Eastern Magistrates’ Court on 18 January 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the amended Summary of Facts before me.
Particulars of the offence are that on 11 December outside 128 Tai Po Road, Sham Shui Po, Kowloon, the defendant, unlawfully trafficked in a dangerous drug, namely, 70.5 grammes of a solid containing 60.6 grammes of cocaine.
The Facts
At around 12.59am on 11 December 2021, police officers were conducting a roadblock duty outside 128 Tai Po Road, Sham Shui Po. The defendant drove his private vehicle and was stopped by them. He looked nervous. Upon search, a piece of tissue wrapping a plastic bag containing 11.6 grammes of a solid containing 10.1 grammes of cocaine was found to be stuffed underneath the defendant’s long-sleeved shirt at his left shoulder. The defendant was then arrested for trafficking in a dangerous drug. Under caution, he said the cocaine was for his own consumption and that there were three more packs of cocaine inside the black doll at the rear seats of the vehicle.
Search of the vehicle found three more packs inside the doll which contained 58.9 grammes of a solid containing 50.5 grammes of cocaine at the rear seat. He admitted, under caution, that the drugs were for his own consumption. The defendant’s admissions were post-recorded in a police notebook, which he signed and acknowledged the contents.
The police also found HK$16,000 cash at the driver’s door, and on the defendant HK$10,826 in cash and two mobile phones.
The government cameras confirmed the narcotics found in the plastic bag wrapped in tissue and the three packs on the vehicle totalled 70.5 grammes of a solid containing 60.6 grammes of cocaine.
The defendant now admits and accepts that he knowingly trafficked the cocaine involved in this case.
The defendant’s Background and Submissions in Mitigation
The defendant was 22 years old at the time of the offence and is now 25 years old. He finished education up to Secondary Level. The defendant has a 6-year-old son with his previous co-habitant and is now being taken care of by his mother.
According to his antecedents statement, he was unemployed at the time of arrest but Mr Ng clarified that the defendant used to work as a casual worker at Kwai Tsing Container terminal.
In mitigation, the defendant had pleaded guilty at the first earliest opportunity. Mr Ng pointed out that the defendant was genuinely remorseful and is working very hard to improve himself and rebuild his mindset mentally and physically during his remand by training himself and completing life planning courses in November 2022, January, April and August 2023. Through an assignment of duty, he developed his interest and skill in haircutting. Mr Ng also submitted that the defendant has strong family ties and they are all present in court to give him support.
I have also been provided with mitigating letters written by the defendant, his parents and his girlfriend. Mr Ng further prayed in aid a letter written by Father Wotherspoon who states that the defendant participated in his anti-drug campaign work by sharing his story on the internet in order to dissuade youngsters from engaging in drug trafficking activities. Mr Ng has said all he can say on behalf of the defendant.
Considerations of Sentence
The leading modern sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150; [2024] 1 HKLRD 1186. I will follow the six-step sentencing approach set out in Yusuph.
Step one is to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned. The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLR 370. For quantities of 50 to 200 grammes, the sentencing band is 8 to 12 years’ imprisonment. The mathematically calculated starting point in this case for 60.6 grammes of cocaine would be 8 years and 3 months’ imprisonment after rounding down.
Steps two and three are to assess the defendant’s role and culpability based upon the evidence and where within the guidelines the defendant should lie. There is no evidence before me to suggest that the defendant had any further role beyond the culpability of a courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting point.
Steps four and five require me to consider whether there are any aggravating factors or mitigating factors. I do not find any aggravating factors. The Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional.
The strongest mitigating factor in this case is the defendant’s guilty plea. He is entitled to a full one-third discount of the starting point which brings the sentence down to 5 years and 6 months’ imprisonment after rounding down.
The defence invited this court to consider that the cocaine contained in the tissue-wrapped packet found on the defendant was for his self-consumption, which contained 11.6 grammes of a solid containing 10.1 grammes of cocaine, and urged the court to sentence his current offence on the basis of trafficking 50.5 grammes of cocaine.
The prosecution did not accept any part of the cocaine seized in the present case were for the defendant’s own consumption. The defendant was invited to substantiate his claim by providing this court with evidence, but the defendant elected not to do so and elected not to have a Newton inquiry. The court was invited to assess the defendant’s claim of self-consumption on the basis of the available evidence.
The principles regarding self-consumption of drugs as a mitigating factor are well established in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.
In respect of the defendant’s claim of self-consumption, having considered the surrounding circumstances, I will not accept this contention for the following reasons:
(1) It is clear from the cases mentioned above that there
will only be a discount on the sentence if a significant portion of the drugs was intended for self-consumption. The effect will be that if the contention is true, it may well make a difference to sentence. The present case does not fall into this category.
(2) No evidence showing that the defendant was a habitual
user of cocaine. I have been provided with a urine test report in respect of the defendant’s sample, which was collected on 14 December 2021, two days after his arrest, which showed the defendant was tested positive for cannabis but not cocaine.
(3) Large amount of cash found on the defendant and in his
vehicle despite the defendant’s claim that he was a casual worker at the Kwai Tsing terminal.
Further, even if a small amount of the drugs might be of the defendant’s own consumption, there will not be any change in the sentence because as the Court of Appeal in Wong Suet Hau and Chow Chun Sang made plain, possession of dangerous drugs is, of itself, a serious offence and carries a term of imprisonment, and there is also the issue of what is known as the “latent risk” factor to consider: see Wong Suet Hau at page 79J to 80B.
I have made known my preliminary views to defence and Mr Ng confirmed that the defendant would not be giving evidence in the witness box to support his claim for self-consumption.
In respect of the defendant’s contributions to Father John Wotherspoon’s anti-drug campaign, in HKSAR v Fundi Furaha Giles [2019] HKCA 154, the Court of Appeal held the sentencing court has a discretion to offer a discount for a significant contribution to Father Wotherspoon’s anti-drug campaign, but the discount should be no more than 3 months.
The Court of Appeal also consider that simply writing a few letters for Father Wotherspoon’s campaign would attract nothing more than a very token discount at paragraphs 22 to 23 of that judgment. This position is again restated in a more recent case in HKSAR v Castillo Caicedo Teresa [2022] HKCA 82, where the Court of Appeal held at paragraph 44. It is not automatic that a defendant’s participation in Father Wotherspoon’s campaign will result in a “token discount” of up to 3 months as provided in HKSAR v Kilima Abbas [2018] 5 HKLRD 88.
As stated by this court in Herry Jane Yusuph, it needs to be assessed realistically and with common sense as to whether the defendant has made a meaningful contribution to the campaign.
As such, in the present case, I have read the letter of the defendant exhibited through Father Wotherspoon’s letter as well as his own letter. I accept the defendant expressed genuine remorse and conveyed a message of sense of guilt and to dissuade others from engaging in trafficking activities. And I have also taken into account what was submitted by Mr Ng on his behalf. I consider that a 3 month discount is appropriate. I will achieve this result by applying the discount to the sentence.
I am of the view that the ultimate sentence of 5 years and 3 months’ imprisonment is appropriate.
I sentence the defendant to a term of 5 years and 3 months’ imprisonment.