COURT: Defendant, on 15 August 2022, you pleaded guilty to a charge of conspiracy to traffic in a dangerous drugs before a magistrate sitting at the Eastern Magistracy. You admitted that between a day unknown in February 2021 and 17 May 2021, both dates inclusive, in Hong Kong, you conspired together with Chan Wing-hang and other persons unknown, to unlawfully traffic in a dangerous drug, namely cocaine. You admitted the Summary of Facts which support the charge in this case. Those can be stated as follows.
At about 12.05 pm on 17 May 2021, whilst police officers were conducting an anti-narcotics operation at the Regent Garden, No. 26A Hang Tau Village, Sheung Shui, New Territories, you drove a vehicle towards that location. They observed you park the vehicle outside Block 1 of Regent Garden. You took out a blue backpack from the boot of the car and walked into Block 1 of Regent Garden. At about 12.17 pm, you then left Block 1 Regent Garden whilst holding the keys of the vehicle to which you had driven, the keys of Room 1C, 1st Floor, Block 1 of Regent Garden, and the blue backpack that you took out from the boot of the car earlier. That car was a silver-coloured private car.
The police officers then went forward and intercepted you whilst revealing their identities. Upon search of the blue backpack, two phones, four keys and a black plastic bag containing 1 kilogramme of a solid, in the form of a block, containing 862 grammes of cocaine was found. You were arrested and under caution, you admitted that you received $1,500 to help another person to deliver the dangerous drugs.
Room 1C of the 1st Floor, Block 1 of Regent Garden was then searched in the presence of yourself on the strength of a search warrant. Inside the room, a further 17 blocks of cocaine was found. You were further cautioned and you admitted that you received a financial reward from another to deliver all the seized drugs in Room 1C.
The total amount of drugs then in your possession, that is in the backpack that you were carrying found was one block and the 17 blocks, amounted to 18,080 grammes of solid containing 15,518 grammes of cocaine. Inside the premises was also found a notebook and a pen amongst other paraphernalia such as scissors, cutters, rolls of plastic tapes, plastic bags.
The vehicle to which you were driving was searched. A wallet and a tenancy agreement with your name being the tenant related to Room 1C was found and a mobile phone was found. The tenancy agreement commenced on 15 April 2021.
I turn now to the subsequent video-recorded interview. You admitted that you rented Room 1C of Block 1 at Regent Garden and the monthly rent was about $4,000. You also told the police that you had the keys to Room 1C. Another male called Chan Wing-hang, who is the co-conspirator named in this charge, also had the keys to Room 1C. You said that the money for renting Room 1C was provided by Chan.
You told the police how you had met Chan in a bar about six to seven years ago in Tai Po. In February 2021, you happened to meet Chan again and you both started to discuss about delivery of dangerous drugs for reward. You then agreed to Chan’s offer.
Since then, you rented Room 1C under Chan’s instruction. Later in April 2021, you went to Hung Shui Kiu in Yuen Long to collect 10 blocks of the dangerous drugs. And in early May 2021, you went to Hung Shui Kiu in Yuen Long to collect about 22 blocks in similar wrappings of dangerous drugs. On those two occasions, you brought back 30 blocks of dangerous drugs back to Room 1C. And the seized drugs from Room 1C were those you had picked up on Chan’s instructions.
The seized notebook with dangerous drugs delivery records were shown to you. You explained that the record showed the number of blocks of dangerous drugs you had delivered on the days you marked, that is between 6 and 17 May 2021. The record showed a total of 24 blocks. You then informed the police on how you would make your deliveries of dangerous drugs. You told the police your role in the dangerous drug syndicate was the manager of the dangerous drug storage and to deliver dangerous drugs on instructions to drivers to make further deliveries.
You told the police where Chan resided, that was in Fanling, and how you had collected the money from Chan. The money you collected was about $20,000 for renting the room and about $6,000 in helping Chan to deliver the drugs and $1,000 as money for gas in your vehicle. These were related to going to Chan’s residence to collect money.
You said that the silver-coloured private car was provided by Chan and Chan changed the registered owner to your name, and you had used the silver-coloured private car to deliver dangerous drugs.
You mentioned the seized black iPhone was your personal phone and the other seized phones, the gold-coloured iPhone and the blue mobile phone, were for handling matters of delivery of dangerous drugs. You communicated with Chan using the blue phone and there was a chat group between Chan and two other persons and the delivery drivers and yourself. And you would receive delivery orders in the group and make deliveries to the drivers for further deliveries.
In May 2021, the estimated street value of the seized drugs, that is 18,080 grammes of a solid containing 15,518 grammes of cocaine, was between HK$22,184,160 for cocaine in powder form and HK$30,663,680 for crack cocaine.
You admit and accept that at all material times, you conspired together with Chan and other persons unknown, to unlawfully traffic in the dangerous drug cocaine.
Defendant, you are 28 years of age and single. You lived with your mother. You are of clear record. You had been educated up to Form 4. However, at the time of the offence you were unemployed.
I have a letter penned by you before me dated 30 January 2021 to which you state there that as you could not manage your financial affairs well, you became heavily indebted. Thereafter, you met with your bad friends, became addicted to drugs and were influenced by them to participate in these criminal activities to earn quick money for repaying debts. You ask the court to show mercy on you so that you can reunite with your family as soon as possible and take care of your aging parents.
Your parents were divorced and lived apart when you were small. Your mother has been residing in Hong Kong all along and she is now present in court. Your father, I believe, lives in the mainland and has a 6-year-old daughter and you have not seen him for about three years due to the COVID-19 pandemic. You have shown deep remorse for committing this offence and of course you have pleaded guilty.
Mr Victor Ho your counsel, has mitigated on your behalf. You had originally come up yesterday for sentence. However, an issue arose yesterday as to the parties assisting the court in the narcotic amount when deciding on the appropriate sentence for the offence of conspiracy. I have had today further submissions from both Mr Ho and counsel for the prosecution, Ms Jojo Lam, public prosecutor, and I am very grateful for Ms Lam’s clear calculations. Mr Ho does not challenge the calculations of Ms Lam.
Supplemental to what is in the sentence committal bundle, Ms Lam has also incorporated and submitted to this court a government chemist certificate dated 17 June 2021. And as I referred counsel yesterday to a Court of Appeal case of which they did not have before me of HKSAR v Chu Ho Wa and Another [2022] 1 HKLRD 359. That has also been submitted to me by Ms Lam in regards to vast quantities of drugs. The reason that the government chemist certificate has been provided to me is so as to work out the percentage purity of the drugs. It has been agreed that I should take the lowest purity of the drugs found by Mr Ho and Ms Lam, that lowest percentage purity is 0.81 percent.
In this case, there is no dispute on the facts that the defendant had in his actual possession, at the time he was arrested on 17 May, 18 blocks of cocaine. And those 18 blocks were 18,080 grammes of a solid containing 15,518 grammes of cocaine.
The guideline case for trafficking in cocaine is Abdallah and for amounts of between 4,000 to 15,000 grammes of cocaine, that would attract a sentence of between 26 and 30 years’ imprisonment. However, for over 15,000 grammes, it is the sentencer’s discretion. In this case, what is found in his actual possession is of course over 15,000 grammes of cocaine.
This case concerns a conspiracy to traffic in dangerous drugs. In sentencing for conspiracy to traffic in dangerous drugs, the court must do its best to ascertain the actual amount of drugs involved in a conspiracy. Firstly, may I say this conspiracy to traffic on the facts of this case was for a period of four months, that is between February to May 2021.
The guideline and most helpful case in sentencing in conspiracy to traffic in dangerous drugs is the case of HKSAR v Chan Kam Loi, CACC 410/2012. In that case, the Court of Appeal gave judgment to which the Honourable McWalters J gave judgment for the court. The Court of Appeal mentioned at paragraph 100 that:
“...in respect of substantive offences such as trafficking in dangerous drugs, there will not be a problem as to the charge will reflect the quantity of drugs that has been seized by the law enforcement agency. But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked.”
He went on to say:
“...quantity is not the only fact relevant to the assessment of gravity of the offence but it has provided the courts with a ready means of identifying an appropriate starting point which can be enhanced should there be present aggravating factors which increase the gravity of the offence.
Thus, for inchoate offences, that is conspiracy offences, the natural course is for the court...”
At paragraph 101:
“...is for the court to analyse the evidence to see whether it allows the court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.”
At paragraph 102:
“The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence.”
I turn to then reach a conclusion as to the quantity of drugs that were trafficked or agreed to be trafficked. In this case in the video-recorded interview, the defendant has stated that, this is at paragraph 7(v) of the Summary of Facts, that he had collected 10 blocks in April 2021 and then 22 blocks in May 2021 and then said about 30 blocks he brought back. That, in my view, is just an estimate because if you add up 10 plus 22, it amounts to 32 blocks and not about 30 blocks as the defendant says. What is clear is the remaining 18 blocks found in the room was what he had collected from Hung Shui Kiu.
What is reliable evidence in my view in this case and it is upon the defendant’s admission, is the notebook that was seized in the premises of Room 1C, evidencing the dangerous drug delivery record. This was the defendant’s dangerous drug delivery record and it explained the number of dangerous drugs that he had delivered on the days he marked, that is between 6 and 17 May, which showed a total of 24 blocks. I will take that as the amount of blocks that he had trafficked in previously, which is a more realistic amount. And in following Ms Lam’s calculation therefore, I would adopt the following. That would mean that the defendant had trafficked in 24 blocks of cocaine plus 18 blocks of cocaine, which was a gross amount of about 42,120 grammes of a solid.
In regards to the purity of the 24 blocks that he had actually delivered and trafficked in, I am prepared to take the lowest purity value which Ms Lam has worked out from the individual drugs packaged in the government chemist certificate, which is 81 percent purity. The lowest purity, therefore, of 24 blocks of cocaine would be 19,440 grammes of cocaine.
What is clear from the facts, of course, the actual amount in the defendant’s possession was 15,518 grammes of cocaine. Therefore, adding these two figures together, the actual purity of drugs in this case amounts to 34,958 grammes of cocaine to which this defendant had conspired to traffic in. And that is the figure I shall take.
Clearly, the 34,958 grammes of cocaine is over and above that as stated in Abdallah and it is at the court’s discretion as to what starting point to take in sentencing the defendant for this amount of drugs.
The most recent case in the Court of Appeal for sentencing in vast quantities of drugs is the case of HKSAR v Chu Ho Wa [2022] 1 HKLRD 359. In that case, Macrae VP gave the reasons for judgment of the Court of Appeal. In that case, the amount of drugs involved were almost identical to the present case, which was 34,232 grammes of ‘Ice’ rather than cocaine.
So the question is, in this case, what is the appropriate starting point I take in sentencing the defendant for this amount of drugs? What was the role of the defendant in this present case? The role of the defendant as admitted in his video-recorded interview was that of a manager of the dangerous drugs storage and to deliver dangerous drugs on instructions to drivers to make further deliveries. So he was a courier or storekeeper (as identified in Herry Jane Yusuph).
In the case of Chu Ho Wa, the defendants in that case as the court found “were more carriers than couriers with no other connections to the drugs other than conveying them from one place to another for a fee”. It was the Court of Appeal’s view that “their roles placed them at, or even below, the lower end of the ‘courier or storekeeper’ bracket as identified in Herry Jane Yusuph”.
In Chu’s case, the Court of Appeal took a starting point of 30½ years’ imprisonment for the 1st defendant given the limited role and culpability, and for D2 at 31 years as he was more involved and who in turn recruited the 1st defendant.
In this case, as I mentioned, the defendant was the manager of the dangerous drug storage centre and he delivered drugs. I consider this on par to be with that of the 2nd defendant in the case of Chu. And taking guidance from that case, I take a starting point for this case, for the defendant had he been convicted after trial, to one of 31 years’ imprisonment.
Defendant, the greatest and strongest mitigating factor in your case is of course your plea of guilty at the earliest opportunity. For that, you will be awarded the one-third discount.
Defendant, you were charged with an offence of conspiracy to traffic in dangerous drugs and I follow the case of Tsang Ka Wing, that is HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. But for your admission about the details of the conspiracy, the police would not have known anything about the conspiracy. And as the court held in Tsang, as a result of this you should be awarded a further discount. And as stated in Tsang, the total discount, incorporating the one-third discount, is that of 38.5 percent.
Defendant, I accept Mr Ho’s submissions that you are of clear record. However, as stated in numerous previous cases, a clear record for trafficking in dangerous drugs is not a mitigating factor such as to reduce the starting point.
I also note from yourself and Mr Ho that you have tried your best to assist the prosecution authorities by giving information about the co-conspirator, Chan. However, as stated by Mr Ho, Mr Chan is at large and the police have been unable to arrest him. However, you have indicated that should Chan be arrested, you will assist the prosecution in giving evidence against him. These are matters which are not mitigating factors as of this moment and when the time comes, if and when it comes, then of course the matter can be taken further.
Therefore, the mitigating factors are as what I have said, the fact that you admitted the conspiracy and your early plea of guilty which amounts to what I shall give you a 38.5 percent discount. There are no aggravating factors in this case.
In the circumstances, taking 31 years as a starting point had you been convicted after trial, and giving you the 38.5 percent discount, your resulting sentence to which you shall serve shall be 19 years’ imprisonment for the present offence.