COURT: Defendant, on 13 June 2024, you pleaded guilty to two charges of trafficking in dangerous drugs before a Magistrate sitting at Eastern Magistracy. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence.
In respect of both these charges, Charges 1 and 2, they were committed on the same date, that is 2 December 2022, and at roughly the same location, which is the 15th Floor of Jing Ho Industrial Building, Wang Lung Street, Tsuen Wan.
In Charge 1, the location was just outside of Room 19, Block D, whilst the location in Charge 2 was actually inside Room 19, Block D. I will refer to this as “the Room”.
In Charge 1, defendant, you admitted that you unlawfully trafficked in 7.02 kilogrammes of a solid containing 5.73 kilogrammes of cocaine. In Charge 2, you admitted that you unlawfully trafficked in 43.067 kilogrammes of a solid containing 35.140 kilogrammes of cocaine.
You have admitted the original Summary of Facts which was dated 29 May, which was slightly amended only as to the charges of today’s date.
The Summary of Facts in support of the charge is as follows.
At about 3.15 pm on 2 December 2022, you walked out of Room 19, Block D, on the 15th Floor of Jing Ho Industrial Building carrying a bag. You were intercepted by police officers and inside the bag you were carrying contained the drugs as quantified in Charge 1.
These blocks were wrapped with plastic wrapping containing a Mercedes-Benz logo. You were arrested and you stated under caution that you would receive $50,000 from someone to deliver the cocaine to others. You informed the police officers the drugs came from inside the Room.
The police and yourself entered the Room with the key card and keys found on your person. The windows of the Room were all boarded up with newspapers and there was no furniture in the Room. Inside the Room were three carton boxes with the drugs as quantified in Charge 2. There were in total 43 plastic-wrapped blocks of solid.
41 of these blocks were wrapped in a plastic wrap with a Mercedes-Benz logo, and two blocks were each wrapped in red plastic wrapping with a Louis Vuitton logo. Inside the Room was also a trolley, two CCTV cameras and a Wi-Fi router all connected to electricity.
The estimated street value of the cocaine was $41,522,123 in powder form and if in crack form, $51,990,306.
In a video-recorded interview, under caution, you stated you came to know a male called David about half a year ago. David knew your mother was sick and introduced you to a drug delivery job at a reward of 50,000. You agreed to take the job.
David had you contact a person called Jackson about three weeks before you were arrested. Jackson gave you a key and a key card to the Room. However, you bought the webcams and router for installing in the Room upon Jackson’s instructions.
On 29 November, Jackson instructed you to go to an alleyway near Wang Lung Street Public Toilet to collect three carton boxes. You did just that and brought the carton boxes back to the Room. You unboxed the three carton boxes and took photos of the contents and sent it to Jackson.
On 2 December, Jackson called you and instructed you to deliver and leave seven blocks of drugs next to a rubbish bin in that alley in Wang Lung Street. You went to the Room to collect the drugs, but on leaving you were intercepted by police officers.
You stated you had not received the $50,000 reward. You have never met Jackson, and you deleted the conversation and phone number records of David. CCTV footage of industrial building on 29 November showed you pushing a trolley with three carton boxes back to the Room. On 2 December, the CCTV showed you going into the Room for about two minutes and then leaving it and then intercepted by the police officers.
Your WhatsApp messages with Jackson was found in your phone and on 2 December 2022, you were asked if you were to give Benz or other types and Jackson confirmed you to give Benz, and you were obviously intercepted as you were going out to deliver the seven blocks.
As to your background and mitigation, your counsel, Ms Cannise Chan, has given me full mitigation in writing, and has supplemented it in her oral submissions.
Defendant, you are 19 years of age today, at the time of commission of the offences, you were 18, you will turn 20 on 21 November 2024. You had been educated up to Form 4, and thereafter worked as a waiter.
It appears that the reason for you committing this offence is because your mother was suffering from coronary disease for some years, which worsened in 2022. Eager to make more money so that your mother could get better medical attention, you agreed to traffic in dangerous drugs. You were lured by the attractive reward of $50,000.
You have two previous convictions, one of shoplifting and one of criminal damage in 2022 to which you were sentenced to probation. You have committed these drug trafficking offences whilst the two probation orders were still in effect.
I have received letters from yourself and your mother. As for you, you are regretful for your wrongdoing. Now, you know that drug trafficking is a very serious offence. You are now trying to equip and better prepare yourself for a new start in life when you are released.
As your mother suffers from long-term illness, you hope to be reunited with her as soon as possible. Your mother has written a very heartfelt letter. Unfortunately, she blames herself for your commission of these serious offences but understands that you got acquainted with these undesirable peers and committed these offences and your other offences.
She says despite she knowing that you are going to spend a long time in gaol, you still actively make time inside, improving yourself. She is a very supportive mother of you and she asks the court for leniency.
I turn now to sentence. The sentence approach to sentencing in drug trafficking cases laid down in the cases of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned.
In this case, defendant, the drugs in both charges involve the drug, cocaine. The tariff case for sentencing in trafficking in dangerous drugs for cocaine is set out in Lau Tak Ming [1990] 2 HKLR 370 but for these large amounts, the tariff case is authority of Abdallah [2009] 2 HKLRD 437 and now a more recent case with a very, very large amount, the case of Sum Ka Wa, CACC 144/2023.
In sentencing the defendant for both charges, I will take a global approach first and add up the drugs in both charges to obtain a total sentence and then sentence the defendant individually for each offence.
The total cocaine involved in the two offences was, in Charge 1, 5.73 kilogrammes and Charge 2, is 35.140 kilogrammes which makes a total of 40.87 kilogrammes of cocaine.
In Abdallah, for amounts over 15 kilogrammes is over 30 years as in the judge’s discretion. Although Sum Ka Wa is not a tariff case, this court takes guidance and precedence from that case of which the Court of Appeal, Macrae Acting CJHC, gave reasons for judgment. He delivered the judgment for the court on 8 August 2024, only some two months previously. The prosecuting counsel in this case, Ms Rosa Lo, was also counsel in that appeal.
The total amount of drugs for which Sum Ka Wa was trafficking in the two charges in that case, that is Charge 2 and 3 was 32.40 kilogrammes of mostly cocaine, but included heroin, ‘Ice’, and ketamine. At paragraph 37 of the judgment, the court stated:
“We accept the judge’s individual starting points for the quantities concerned of 25 years and 3 months’ imprisonment on Count 2 and 33 years’ imprisonment on Count 3.”
After a one-third discount, the court ordered that both sentences to run wholly concurrent. So it would appear that the Court of Appeal endorsed a term of 33 years for 32.40 kilogrammes of the drugs.
In Sum Ka Wa, Count 2 concerned 3.43 kilogrammes of cocaine, and Count 3, 23.97 kilogrammes mostly of cocaine, but including the other types of drugs.
The second step is to assess the role and culpability of the defendant based on the evidence. Based on the evidence in this case, defendant, you went to collect the drugs and bring them back to the Room. The Room of which you had the keys and on the CCTV appeared to be the only one who entered the Room and left the Room since it was rented on 14 November 2022.
You were also the one who then took the drugs out from the Room and delivered them to others, that was clearly depicted on the video on 2 December and you were intercepted. Bearing in mind, therefore, you were a courier and a storer and a collector and moving the drugs, I consider the third step, that is to identify where in the relevant band you come.
Although there is no band for this amount of drugs, I consider that the appropriate starting point for 40.87 kilogrammes of cocaine following the case of Sum Ka Wa should be 33 years’ imprisonment.
The fourth and fifth steps is to consider whether there are any aggravating factors or any mitigating factors. I do not consider there to be any aggravating or personal circumstantial mitigating factors in this case. The most significant and only mitigating factor is your early and first opportunity of pleading guilty. For this, you will benefit from a one-third discount to your sentence.
The starting point for the global total sentence is one of 33 years, giving you one-third discount for your plea of guilty at the earliest opportunity, that term shall be reduced to 22 years’ imprisonment which you shall serve.
Defendant, you are charged with two separate offences, and I must sentence you separately for these offences to reflect the total sentence as I have just sentenced you to.
Defendant, you were trafficking in 5.73 kilogrammes or 5,073 grammes of cocaine in Charge 1, that amount falls in the band of 4,000 to 15,000 grammes, which warrants a sentence of between 26 to 30 years’ imprisonment after trial.
For this amount of drugs, given your role, I take 26 years and 3 months’ imprisonment as the starting point and after a one-third discount, reduce that term to 17 years 6 months on Charge 1.
In Charge 2, defendant, you were trafficking in 35.140 kilogrammes of cocaine and I take a starting point of 33 years’ imprisonment. After a one-third discount, that term will be reduced to 22 years.
Both sentences are to run concurrent to each other. That means making a total term of 22 years’ imprisonment.
The sixth step is to observe the overall sentence passed to ensure it is fair, just and balanced in all the circumstances of the offence and the offender, and I consider it to be so.