Wong Ho-yin, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and in that you accept that you were intercepted by police officers on 19 January 2015 in Kong Pui Street, Shatin. You were intercepted in the company of Cheung Man-choi who was and is almost exactly 10 years older than you.
At that time, you were found to be in possession of two mobile phones, a bunch of keys and $3,716.10 in cash. Those keys were found to open the doors of Flat 4 on the 2nd floor of Block B, Greenwood Garden, Shatin. This was a flat which you were seen regularly going to and coming from, and it may appear that in fact you might have been there overnight from time to time.
Paraphernalia for consuming and trafficking in dangerous drugs, as well as 461.26 grammes of substance found to contain 164 grammes of cocaine and 5.11 grammes of methamphetamine hydrochloride, or ‘Ice’ as it’s commonly called, were found inside that flat you had regular access to.
The street value of the drugs in January 2015 was $445,571 for the cocaine and $2,210 for the “Ice”.
I was urged to obtain a background report by Ms Cheung, and I did so. I have read the report prepared by the probation officer, Mr Chun Kam-to, dated 4 January 2016 and considered what counsel Ms Cheung has said on your behalf and have read the letters presented to me from your family.
You are now just 17 years of age with a father who was a construction worker and a mother who was a cleaner, and you have three sisters who are older than you, although I note that one of those sisters is mentally handicapped.
She has urged me to take into account the fact that you were just 15 years of age at the time of this offence and had left school during form two, having struggled to complete form one. Thereafter, at a very tender age I note that you fell in with undesirable characters and very soon acquired a drug habit which resulted in you committing crimes to feed that habit which was well outside both your means and the means of your family who have lived a humble life.
You made no attempt to obtain honest employment, yet from December 2013 onwards you had a drug habit which you say cost you $600 per week. From the papers, I can see that you say that you were recruited by Ah Wai to run drugs for him and would be paid $1,000 for each delivery. That had been going on since October 2014, you say. Perhaps with stricter supervision and more parental guidance you would not have been in the position to mix with drug abusers and dealers, but ultimately it was your choice to do so, although those who manipulated you to their own ends must pay a price for so doing.
I do also take into consideration the fact that there was paraphernalia for the consumption of ‘Ice’ within the flat and that you have admitted the reason for your offending was the habit you acquired in 2014. In mitigation Ms Cheung has submitted that the ‘Ice’ was in the flat and was not just for your personal consumption but for anybody to consume and that you did so from time to time.
I do believe that the ‘Ice’ found within the flat is more likely to have been for yourself and for the self-consumption of those using the flat, including Mr Cheung who lived there. It may also have been given to you as a form of reward and to keep you addicted so that you would be a runner.
I accept what was said about the ‘Ice’ and that it is likely that it was for social consumption or for reward because the value of the ‘Ice’ was just $2,210 and you told the probation officer that you were paid $1,000 per delivery. That too suggests that the ‘Ice’ may have been for your use rather than in your possession for onward sale.
The flat was occupied by Mr Cheung, and I intend to treat it as in his possession and not yours as you did not live there and it would have been for him to say who could consume it and when.
You pleaded guilty at the very first opportunity in the Magistrates’ Court and is to your credit. For trafficking in between 50 and 200 grammes of cocaine, the guideline range of sentencing under
R v Lau Tak Ming [1990] 2 HKLR 370, is between 8 and 12 years. The starting point for 164 grammes of cocaine is therefore 11 years’ imprisonment.
You are a very young man now and indeed at the time of your offending, and you were of effective previous good character. I have given you the benefit of the doubt in respect of the presence of the ‘Ice’, and I will not take that into account in sentencing.
I am going to accept what Ms Cheng says about your age and your naivete in 2014 when you first started assisting the co‑defendant. But in the circumstances of this case you do not warrant any further discount either for your age or for your personal circumstances, and the sentence I must therefore pass upon you, which has the starting point of 11 years of imprisonment, and after discount of one-third for your early and timely plea, will be 7 years and 4 months.
Cheung Man-choi (HCCC 344 & 427/2015)
You stand before the court, Cheung Man-choi, on two indictments: HCCC 344/2015 and HCCC 427/2015. Both of those indictments contain counts involving the trafficking of dangerous drugs.
The first matter in time is, in fact, HCCC 427/2015. That indictment contained two counts of conspiracy to traffic in dangerous drugs, contrary section 4(1)(a) and section 4(3) of the Dangerous Drugs Ordinance, Cap 134, and section 159A and C of the Crimes Ordinance, Cap 200.
On 20 January 2016, at the second PTR, you indicated to DHCJ D’Almada Remedios that you intended to plead guilty to Count 2 on that indictment and the prosecution indicated at that time, and indeed today, that that plea is acceptable.
On that occasion, at the second pre-trial review, the judge had occasion to comment upon the fact that Count 2 made no reference to the quantity of drugs involved in the conspiracy and directed that either the prosecution were to amend the indictment, which should be served by 22 January 2016, or the plea to be entered must be on the basis of the summary of facts which specifies the amount of methamphetamine hydrochloride involved. That statement of facts should be served by 25 January 2016 and, in fact, the court received the statement of facts early on 22 January. The statement of facts involved an allegation of conspiracy in July and August 2014 to traffic in 4.02 kilogrammes of ‘Ice’, the value of which in August 2014 was $1,750,860.
You have pleaded guilty to that charge and have accepted the statement of facts with that amount within it, and you have been found guilty formally on Count 2 on the indictment, and I ordered that Count 1, to which you pleaded not guilty, lie on the file and not to be proceeded with without the leave of this court or Court of Appeal.
The conspiracy to which you pleaded under Count 2 of the indictment involved an agreement between you and Yau Kwok-yin and Chan Yik-tung to traffic ‘Ice’ to Japan. That agreement had been reached during July 2014 when you suggested to Yau that he should help you to traffic the ‘Ice’ to Japan and you asked him to find a mule or what has been referred to in the papers “a pig” to carry the ‘Ice’. Chan was recruited by you, the two of you, to be the pig.
On 28 August 2014, you and Yau Kwok-yin were at Chek Lap Kok International Airport in order to give Chan Yik-tung, who is a Chinese female, her passport and some Japanese yen to make sure that she safely left the country as she was carrying ‘Ice’ to Japan for you. But she was intercepted at the check-in and found to have 4.11 kilogrammes of a substance in her suitcase which was later found to contain 4.02 kilogrammes of ‘Ice’.
Chan was arrested and charged with trafficking in dangerous drugs and she pleaded guilty. She gave a non-prejudicial statement against Yau who had recruited her at your request and he too was charged and pleaded guilty, but you were not proceeded against.
However, on 14 July 2015, a month before he was due to be sentenced, Yau made a non-prejudicial statement in which he made a number of allegations against you. In essence stating that you were the mastermind and that you had approached him to find Chan. By reason of the statement of facts before me you agreed that that was the case. As a result, you were arrested once again on 24 August 2015 for that offence. At that time you were in custody having been arrested and charged with the offence contained within the other indictment, HCCC 344/2015, which is the trafficking in dangerous drugs of 164.06 grammes of cocaine and 5.11 grammes of ‘Ice’.
You appear today to face that charge along with Wong Ho-yin, who I have now dealt with, who was just 15 at the time of offending in January 2015.
You have also pleaded guilty to that charge, and I have formally found you guilty of the one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the DDO, Cap 134. Insofar as that offence is concerned, you accept that you were intercepted by police officers on 19 January 2015 in Kong Pui Street, Shatin and at that time you were found to be in possession of three mobile phones and $60,697 in cash. You were also found to have secreted a pair keys in your jacket sleeve, and those keys were found to give access to Flat 4 on the 2nd Floor of Block B of Greenwood Garden, Shatin, inside of which was found paraphernalia for consuming and trafficking in dangerous drugs as well as 461.26 grammes of a substance found to contain the 164.06 grammes of cocaine and the 5.11 grammes methamphetamine hydrochloride.
The street value of those drugs in January 2015, as you heard before, was $445,571 for the cocaine and $2,210 for the ‘Ice’.
These were two sets of offending which were very different. One is scheme to export dangerous drugs from this country to Japan using a drug mule or (as you call it “a pig”) who was to be paid well for the risk she undertook. At the time of arrest, she had already received $10,000 of the $50,000 she had been promised. And I also note from the papers that Mr Yau was to be paid $15,000 for his trouble. So it is clear that this was to be a lucrative arrangement for you.
The other matter appears at first blush to be a small-scale local operation carried out just some five months later using a vulnerable 15-year-old boy who was addicted to ‘Ice’. But it is interesting to note, however, that for a relatively small amount of cocaine - 164 grammes - your profitability in January 2015 was considerably increased in relation to the profitability on the 4 kilogrammes of ‘Ice’ which was to be exported to Japan in August 2014.
So whilst the operation may seem smaller, it would seem that the financial gain was just as significant, if not more so, and the harm was being done to citizens of Hong Kong.
Under HCCC 71/2015, Chan Yik-tung, who was the ‘pig’, was sentenced by DHCJ Wilson Chan on 14 August 2015 and she received 15 years and 11 months’ imprisonment for the offence to which she pleaded guilty at the first opportunity and in which she assisted the police in respect of the arrest and the prosecution of Yau. So in all, she received a 43 per cent discount on a starting point of 28 years.
Under HCCC 187/2015, Yau Kwok-yin was also sentenced by DHCJ Wilson Chan on 14 August 2015, and in mitigation it was said that Yau had been the intended mule initially but was found to be unsuitable by you, if I remember rightly because of his tattoos, which is why he was asked to recruit Chan. He was promised to $15,000, as I have already said, to do so.
The starting point the judge adopted was the same as that for Chan Yik-tung but Yau received 18 years and 8 months’ imprisonment for his part which reflected the one-third discount for his guilty plea. I do not know whether any further reduction was provided to Mr Yau as a result of his assistance to the police afterwards.
The dangerous drug under HCCC 427/2015 is methamphetamine hydrochloride or, as we have all referred to it, ‘Ice’. The offence was committed on 28 August 2014, after the Court of Appeal handed down its judgment in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June of that year. That case set out the revised tariffs for trafficking in ‘Ice’.
Tam Yi Chun stated that for amounts in excess of 600 grammes, the proper tariff to be imposed after trial were those outlined in HKSAR v Abdallah [2009] 2 HKLRD 437 in respect, in that case, of large quantities of heroin. In Abdallah, the range of sentence to be considered for trafficking in between 4 kilogrammes and 15 kilogrammes of heroin was between 26 and 30 years’ imprisonment. The starting point for sentence should therefore be 26 years.
However, this conspiracy was to export dangerous drugs to Japan, which carries with it an international element and is an aggravating feature of this case. Therefore, the starting point of 26 years falls to be enhanced in line with the guidance set out in Abdallah at paragraphs 42 and 43, and that enhancement will be 2 years. This takes the starting point for this offence up to 28 years.
I have taken into account everything said on your behalf by counsel. For matters as serious as this there are a few circumstances which will mitigate the sentence which must inevitably be passed. There is nothing which has been said and which is available to the court today which suggests any discount other than one for the guilty plea, which is one-third, which would be appropriate.
You have a criminal record which indicates you have been before the courts previously, but never for matters as serious as this, although you have been dealt with on two previous occasions for possession of dangerous drugs for which you received detention centre and 6 months’ imprisonment, and indeed you were released on the 6 months’ imprisonment sentence from custody on 20 September 2012. But your record, as it is, does not affect the sentence I am about to pass upon you.
There will be a discount of one-third for the plea tendered in HCCC 427/2015 and that will make a sentence of imprisonment of 18 years and 8 months.
But you also fall to be sentenced for HCCC 344/2015 which took place just some five months later and which involved the recruitment of a teenager whose life has been ruined because of his involvement with you.
In the normal course of things, an offence of trafficking in dangerous drugs in 164.06 grammes of cocaine attracts a starting point after trial of 11 years. And, of course, the 5.11 grammes of ‘Ice’, if being dealt with as a trafficking offence, would attract a starting point of 5 years after trial. But the court has been very lenient towards Wong Ho-yin where the 5.11 grammes of ‘Ice’ is concerned, because it was highly likely that it was indeed consumed by him and others at your direction and no doubt as payment and encouragement for the role he played at your behest.
So I take into account the fact that it was most probably you who provided it, not least because it was in your residence. I also accept what Mr Ng had said on your behalf that you also consumed drugs, although I do not accept that you were an addict as you informed the authorities that you were not addicted to drugs when they completed the antecedents statement for this court.
So I am going to treat the 5.11 grammes of ‘Ice’ as a matter of possession, and the starting point for possession of 5.11 grammes of ‘Ice’ is between 12 to 18 months according to HKSAR v Wong Sun Shun [2001] HKLRD which was endorsed in HKSAR v Mok Cho Tik [2001] 1 HKC 261, although in the latter case the defendant was in possession of 15.724 grammes of ‘Ice’ and the defendant was 22 years of age with one previous conviction for possession of dangerous drugs.
I consider a starting point of 12 months to be appropriate, but I am going to enhance that starting point by 9 months for the latent risk factor which is supported by the mitigation advanced, that the drugs were there for others to consume and, in essence, had a financial benefit to it in that you encouraged others to work for you - certainly you encouraged Wong Ho-yin. So, the starting point for the 5.11 grammes of ‘Ice’ is therefore 21 months.
Given that I have accepted the stance taken by defence counsel in respect of the ‘Ice’, I no longer believe that the court needs to consider the guidance in
HKSAR v Chan Yuk Leong CACC 318/2013 on mixtures of drugs and I will proceed on an individual basis.
The starting point for HCCC 427 is 18 years and 8 months. The starting point for the cocaine in HCCC 344 is 11 years, and the starting point for the possession of the ‘Ice’ in HCCC 344 is 21 months. But so far as HCCC 344 is concerned, I must consider those two starting points together, and I think the appropriate total starting point for HCCC 344 is 12 years. That takes into account the totality on that matter alone.
But there is one significant aggravating feature which I have already alluded to, and that is the recruitment of a young boy. The court takes a very dim view of the recruitment of the young and the vulnerable.
It cannot be seen to be passing a more lenient sentence on those like Wong Ho-yin who succumb to temptation or who are manipulated by their elders, because if it did so then people like you and those you work with would recruit even more vulnerable and young people. What the court can do, however, is mark the recruitment of such people as an aggravating factor in considering all of the relevant factors for sentencing, and as a consequence, I enhance the sentence which is to be passed on you under HCCC 344/2015 by one year. That makes a total of 13 years. After a one‑third discount on that sentence, the term is 8 years and 8 months.
These were two totally separate offences and if the two were simply added together, you would have received a sentence of 27 years and 4 months. But I take into account, yet again, the principle of totality.
For Count 2 of HCCC 247/2015, you will go to prison for 18 years and 8 months. For Count 1 of HCCC 344, you will go to prison for 8 years and 8 months, but 4 years of that sentence will be concurrent with the sentence passed upon you under HCCC 427/2015.
You will therefore go to prison for a total of 23 years and 4 months.