COURT: The defendant pleaded guilty before a magistrate to one charge of conspiracy to traffic in a dangerous drug and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including the facts which the defendant admitted, the type and quantity of the drug involved, personal background of the defendant, and mitigation put forward on his behalf. I have also had regard to the sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The facts of the case may be summarised as follows.
On 2 September 2021, police officers intercepted a taxi and conducted a search on the defendant who was the passenger. On him, 61 plastic packages containing a total of 24.28 grammes of a solid containing 22.4 grammes of cocaine were found. He was arrested. In his mobile phone, there were messages on 1 and 2 September revealing 15 dangerous drug transactions. According to the messages, the defendant had delivered a total of 72 packages of cocaine in 15 transactions, in various places in Hong Kong. Some were delivered to customers for free and 62 packages were sold. $15,000 had been received from customers.
During a subsequent video-recorded interview, the defendant made statements under caution, which include the following:
(i) The dangerous drug seized was given to him by a person called ‘Ah Wah’;
(ii) He was to await further instructions from Ah Wah;
(iii) He was to sell dangerous drug at $250 per package, for a reward of $50 per package;
(iv) Ah Wah told him the boss was ‘B Gor’ whom he had never met;
(v) The dangerous drug was cocaine;
(vi) Some of the messages in the phone related to dangerous drug having been successfully delivered and the location of the transaction; and
(vii) Details for each transaction such as selling price, location of delivery, and contact details of customers.
I was told that the defendant is single, now 19 years old. He received education up to Form 3 and had worked as a transport worker. He did not have previous conviction record.
In mitigation, learned counsel for the defence, Mr Adonis Cheung, stressed that the defendant had pleaded guilty at the earliest opportunity. He said the defendant has remorse. He also asked the court to take into account that the defendant was only at the age of 17 years when he committed the offence.
He submitted that the defendant was only a courier and informed the court that he committed the offence for a financial reason. He reminded the court that as the charge particularises, the alleged conspiracy lasted two days. He also highlighted that apart from the drug actually seized, there is no direct evidence about the purity of the other drug and the Government Chemist certificate shows that the quantity in each packet of the drug actually seized varied.
This is a case of conspiracy to traffic in a dangerous drug. I have had regard to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho, CACC 367/2010. Though quantity is not the only fact relevant to the assessment of gravity, if quantity of the drug involved is known, it provides the court with a ready means of identifying the appropriate starting point.
In the present case, the matter which led to the discovering of the case involved 22.4 grammes of cocaine, contained in 61 packages. This quantity alone attracts a starting point of about 5 years and 10 months. The defendant was to deliver this batch of drug. There is evidence showing that he had delivered 72 packages of cocaine in 15 transactions within that day and the day before. Amongst these, 62 packages were sold and $15,000 were received. The purity of the drug actually seized was high. I have no basis to think that the purity of the other batches of drug would have a significant difference.
I assess the degree of culpability in relation to the defendant’s involvement in the conspiracy on the basis that the role of the defendant was, as Mr Cheung submitted, relatively low in the hierarchy of the conspiracy.
I take into account the whole circumstances as revealed in the facts admitted by the defendant, including the quantity of the drug actually seized and the evidence of the previous transactions.
There was a WhatsApp chat group opened on 3 August, almost one month before the defendant was arrested. The defendant admitted that the group was used by B Gor to give him instruction to sell drug. At the same time, I note that the conspiracy alleged against the defendant was confined to two days, 1 and 2 September 2021.
In my judgment, the material is sufficient for me to draw the inference that in these two days, the defendant must have actually trafficked in cocaine on previous occasion or occasions, and the overall quantity including the drug actually seized was in the region of 40 grammes. This is an important factor in the consideration, though not the only factor.
Bearing in mind these circumstances and the tariff set out in R v Lau Tak Ming [1990] 2 HKLRD 370, I adopt the sentencing approach as stated earlier. I am of the view that for a conspiracy of this scale, a starting point of 7 years and 9 months is warranted.
The defendant did not have previous conviction record and was only of the age of 17 years at the time of the offence. Whilst section 109A(1) of the Criminal Procedure Ordinance is not applicable, I bear in mind the spirit behind the provision and the desire in general to foster rehabilitation for young offenders. On the other hand, the offence which the defendant committed was a serious one. Having given careful thought, I find his age and previous lack of conviction record carry little significance in mitigation of sentence.
The defendant pleaded guilty before a magistrate. For this, he is entitled to a one-third discount. Having considered the whole of the circumstances, including what Mr Cheung ably said on behalf of the defendant, in my judgment, one-third is the extent of discount the defendant is entitled to.
Defendant, for the reasons I have said, I sentence you to an immediate imprisonment term of 5 years and 2 months.