HKSAR v. WANG KA LAM AND OTHERS

DCCC 899/2019

[2020] HKDC 579

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 899 OF 2019

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REASONS FOR SENTENCE

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1.  Both D1 and D3 were convicted of one count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and section 159A of the Crimes Ordinance, Cap 200 (3^rd charge) while D2 was convicted of three charges of conspiracy to traffic in a dangerous drug (1^st charge, 2^nd charge and 3^rd charge) on their own plea and agreement to the amended Summary of Facts.

Facts

2.  At around 5:20 am on 11 July 2019, D1 to D3 were intercepted by police at 22-26 Minden Avenue, Tsim Sha Tsui, Kowloon.

3.  Shortly before they were intercepted, both D1 and D2 were counting money respectively in their hands in front of D3.  Upon noticing the police, D2 passed his money to D1 and D1 took the money and placed them together with those in his hands onto a stone slab next to them.

4.  At all material times, D1, aged 13, was a Form 1 secondary school student while D2, aged 16, was a Form 4 secondary school student.  D3, age 25, was a casual construction site worker. 

5.  Upon body search, the following contraband was found inside the left rear pocket of D1’s jeans.  Firstly, 1 plastic bag containing altogether 12 small resealable bags containing a total of 3.5 grammes of a solid containing 2.4 grammes of cocaine.  Secondly, 1 plastic bag containing altogether 14 small resealable plastic bags containing 5.71 grammes of a solid containing 2.69 grammes of cocaine.

6.  D1 to D3 were forthwith arrested.  Under caution at the scene, each of D1 and D2 admitted that they were instructed by D3 to sell dangerous drugs.

7.  Meanwhile, D3 remained silent under caution at the scene.

8.  At the time of arrest, D1 had with him, firstly, on a stone slab cash of HK$4,340, secondly, in the left front pocket of his jeans, cash of HK$30 and thirdly, in the right front pocket of his jeans a “Sugar” brand mobile phone.

9.  At the time of arrest, D2 had with him in the left front pocket of his trousers, a wallet containing cash of HK$2,050 and in the right front pocket of his trousers, an iPhone XS Max mobile phone.

10.  At the time of arrest, D3 had with him in his left front pocket of his jeans, a wallet containing cash of HK$18,767 and RMB$766 and in the right front pocket of his jeans, cash of HK$31,000 and an iPhone 7 mobile phone and on the stone slab, an iPhone 6S mobile phone.

11.  During a video-recorded interview conducted by police between 5:31 pm and 8:10 pm on 11 July 2019 in which D1’s mother was present, D1 admitted inter alia the following:-

(i) he and D2 were schoolmates of the same primary school and secondary school but they attended different grades;

(ii) he became acquainted with D3 through D2 around one month prior to this arrest;

(iii) D3 recruited him to deliver cocaine and promised him a monetary reward of HK$60 for selling each large pellet of dangerous drugs and HK$40 for selling each small pellet of dangerous drugs;

(iv) on 10 July 2019, it is his first time to assist D3 to traffic in dangerous drugs;

(v) in the evening of 10 July 2019, he and D2 were instructed by D3 to go to Tai Kok Tsui, Kowloon, to meet up with D3;

(vi) D3 led him and D2 to Chung Mei House situated in Tai Kok Tsui, Kowloon;

(vii) an unknown male person passed a packet of cocaine to them and he was responsible for safekeeping the dangerous drugs;

(viii) he and D2 then waited for instructions from D3;

(ix) on D3’s instructions, he and D2 took a taxi to two different destinations and delivered dangerous drugs to two customers receiving $1,840 and $1,000 respectively;

(x) at around 1 am on 11 July 2019, he and D2, as instructed by D3, went to Chung Mei House again and obtained the second packet of ‘Coke’ from the unknown male person;

(xi) the packet of dangerous drugs was safe keeping by him;

(xii) he and D2 then awaited instructions from D3;

(xiii) later, he and D2, as instructed by D3, caught a taxi and delivered dangerous drugs to another customer and received HK$1,650. The proceeds was kept by D2;

(xiv) at around 5 am on 11 July 2019, he and D2, as instructed by D3, took a taxi to Minden Avenue, Tsim Sha Tsui, to meet up with D3;

(xv) whilst he, D2 and D3 were counting the proceeds obtained from dangerous drugs trafficking transactions, they were intercepted by uniformed police officers. The two packets of dangerous drugs were found on him and as a result, they were arrested;

(xvi) he and D2 had not received any monetary reward from D3 yet.

12.  During a video-recorded interview conducted by police between 9:29 pm and 11:38 pm on 11 July 2012, D2 admitted, inter alia, the following:-

(i) he engaged in dangerous drugs trafficking activities and was responsible for safekeeping the sale proceeds;

(ii) he and D1 were schoolmates but attended different grades of the same school;

(iii) he introduced D1 to D3;

(iv) he had triad society affiliations;

(v) on 10 July 2019, D1 and himself assisted D3 to traffic in dangerous drugs;

(vi) in the evening of 10 July 2019, D1 and himself, as instructed by D3, met up with D3;

(vii) D3 then led D1 and himself to a building situated in Chung Wui Street where they obtained a packet of cocaine from unknown male person;

(viii) D1 was responsible for safekeeping the dangerous drugs;

(ix) in the evening of the same day, D1 and himself, as instructed by D3, took a taxi and delivered dangerous drugs to two customers. D1 collected HK$1,850 and HK$1,000 respectively from two customers and passed the sale proceeds to him for safekeeping;

(x) at about midnight on 11 July 2019, D1 and himself, as instructed by D3, obtained another packet of cocaine and later a customer purchased some cocaine from them for the sum of HK$1,650 and he was responsible for safekeeping the proceeds;

(xi) at around 5 am on that day, D1 himself, as instructed by D3, took a taxi to Minden Avenue to meet up with D3;

(xii) when D1, himself and D3 were counting dangerous drugs and proceeds, they were intercepted by the police;

(xiii) he first started engaging in dangerous drugs trafficking activities on D3’s behalf in June 2019;

(xiv) on that occasion, D3 instructed D1 and himself to go to a McDonald’s Restaurant situated at Langham Place, Mong Kok;

(xv) D3 then passed some dangerous drugs to D1 inside the cubicle of the lavatory inside the McDonald’s Restaurant whilst he acted as a lookout outside the cubicle;

(xvi) he was aware that D3 had given 20 odd packets of cocaine to D1, but he was unsure about the exact amount of dangerous drugs involved;

(xvii) D3 instructed D1 and himself to deliver the cocaine to customers and to conduct about three to four transactions, he receive monetary reward of HK$390 when engaging in these three to four dangerous drugs transactions;

(xviii) on the Saturday before his arrest, he engaged in dangerous drugs trafficking activities for the second time on D3’s behalf;

(xix) on that Saturday, D1 and himself, as instructed by D3, went to Har Po Street, Kowloon and collected a black plastic bag. He then passed it to D1 and inside the black plastic bag were five “oranges”. He knew that the “oranges” were packets of ketamine;

(xx) D1 and himself, as instructed by D3, delivered the “oranges” to customers and then engaged in altogether five dangerous drugs trafficking transactions on that day;

(xxi) on Sunday, he took back one “orange” from a customer and re-delivered that “orange” to another customer in Tsim Sha Tsui. He received HK$200 as reward;

(xxii) for every HK$1,500 he received from customer(s), he received a reward of $60. Meanwhile, for every $500 received from customer(s), he will receive a reward of $40.

13.  During a video-recorded interview conducted by police between 12:52 am and 3:42 am on 12 July 2019, D3 admitted the following, inter alia:-

(i) he met D2, who was age 16 in June 2019;

(ii) D2 introduced D1, who was 13, to him also in June 2019;

(iii) D1 asked if he could make referral for employment and hence, through his connections involving three male persons, including a male person called ‘Ah Wan’ and one person called ‘Ah B’, he arranged D1 to engage in delivering cocaine;

(iv) D2 also agreed to accompany D1 in trafficking activities;

(v) he received orders for dangerous drugs via “WeChat” or “WhatsApp” message by mobile phone;

(vi) the customers would provide their telephone contact numbers and also indicate the quantity of cocaine they wished to purchase;

(vii) he himself is unsure of the exact quantity involved in one “stroke” or one “unit”. When one “stroke” refers to one small green packet which costs HK$500, whilst one “unit” refers to a large size yellow packet which costs HK$1,500;

(viii) upon receiving orders for the dangerous drugs, he would “WhatsApp” or “WeChat” the orders to D1 and D2, and then they would themselves arrange with the customers for delivering of the dangerous drugs;

(ix) they would be given a monetary reward of $40 for each HK$500 packet sold and HK$60 for each HK$1,500 packet sold;

(x) there is no fixed number of dangerous drugs transactions for each day;

(xi) D1 and D2 would keep the dangerous drugs trafficking proceeds and make deposits to a bank account or pass the money to him in person;

(xii) on 10 July 2019, he had dinner with D1 and D2 in Prince Edward District. After dinner, he received a request for an unknown person to collect cocaine from Tai Kok Tsui, Kowloon;

(xiii) D1 led the way to the front gate of a building in Tai Kok Tsui and collected some dangerous drugs, while D2 and himself watched D1 do so from afar;

(xiv) he counted the dangerous drugs which were placed inside a transparent resealable plastic bag and then passed them to D1;

(xv) he then led D1 and D2 to a boxing centre in Hang Seng Centre for them to await delivery orders for the dangerous drugs;

(xvi) he then left whilst D1 and D2 stayed to wait for orders;

(xvii) there were altogether three orders for dangerous drugs, the first, in Tsing Yi, $1,500 for one “unit”, the second, in the cafe in Prince Edward, HK$1,000 for two “strokes”, and the third, was at a location he did not know for one “unit”, HK$1,500;

(xviii) in between the second and third orders, D1 and D2 had gone to Chung Wui Street in Tai Kok Tsui to get more dangerous drugs from someone, but he was not sure whether it was from the same source as the first one;

(xix) he arranged to meet up with D1 and D2 and go drinking at Minden Avenue, Tsim Sha Tsui, Kowloon after D1 and D2 had finished the delivery jobs. However, all three of them were intercepted and arrested by police after meeting up at Minden Avenue.

14.  Examination of the seized mobile phones shows that all three defendants had communicated with each other between 10 July and 11 July 2019 on the collection and delivery of dangerous drugs.

15.  At all material times, D1 knew what he was doing was seriously wrong.

16.  D2, on an unknown day in June 2019, conspired with D1 and D3 to traffic in dangerous drugs, namely cocaine. 

17.  D2, between 6 July and 7 July 2019, conspired with D1 and D3 to traffic in dangerous drugs, namely ketamine.

18.  D1, D2 and D3, between 10 July and 11 July 2019, conspired together to traffic in a dangerous drug, namely cocaine.

Criminal record

19.  All three defendants have clear record.

Mitigation

D1

20.  D1 was aged 13 years old at the time of offence.

21.  He was born in mainland and he came to Hong Kong later with his mother.

22.  He is now studying in Form 2 in secondary school.

23.  He lives with his father, mother and elder sister.  His father is a security guard whilst his mother is a waitress.  It is said that due to the working hours, the parents had not been able to properly supervise the defendant. 

24.  Defence counsel for D1 says the defendant was found to be suffering from Attention Deficit Hyperactivity Disorder (ADHD) when he was in Primary 4.  As a result, he needed regular follow-up at government hospitals and had to take medication.  The defendant also suffers from eczema which requires him to make topical cream applications from time to time.

25.  Defence counsel for D1 submitted that after the arrest on 11 July 2019, D1 was all along remanded until 30 August 2019.  During this time, D1 had been remanded in custody for 7 weeks and 2 days.  On 28 November 2019, Juvenile Court made a care and protection order and the 1^st defendant was committed to the care of his mother and placed under supervision of Social Welfare Office for 12 months. 

26.  It was said that D1 was young and naive.  He associated with the wrong elements leading to the commission of the present offence.  It was also said the parents did not notice the wayward problem early enough and they also failed to exercise sufficient control and care on the defendant. 

27.  Defence counsel for D1 submitted that clearly the 1^st defendant was not the mastermind.  He was merely manipulated by others.  The 1^st defendant confessed to the police and pleaded guilty in court at the earliest opportunity.  It was a sign of courage and remorse and D1 promises this court and his mother that he will be law-abiding in future.

28.  It was submitted by defence counsel for D1 that although D1’s academic performance in school remains unsatisfactory, the number of demerits in school is less than before.  He says this shows that the conduct of D1 has improved. 

29.  It is also said that after the arrest, the 1^st defendant has ceased contact with the co-defendants in this case, as well as the other undesirable elements.  According to his mother, D1 is now more disciplined in life, returns home early and has stopped lingering in the streets.  The mother of D1 understands that the offence committed by D1 is very serious.  She is now determined to care more for the 1^st defendant and will exercise more control.  She supports D1 in his rehabilitation. 

30.  Defence counsel also submitted that as D1 is gradually maturing, the chance of his re-offending is relatively low. 

31.  Letter from D1 was produced to this court and it was submitted that the letter shows D1’s determination to turn afresh and his remorse.  D1 urges for the leniency of the court.

Probation officer’s report

32.  It is said that D1 treasures most the relationship with his mother, then his elder half-sister, his stepfather and younger half-sister.  The report set out the family background of D1.  He is described as a low achiever in academics which may be related to his problem of Attention Deficit Hyperactivity Disorder and lack of parental guidance and support.

33.  The school attendance record shows D1 is becoming less and less interested in studies.  During the pandemic period, D1 rarely attends the online classes or submits to assignments during class suspension.  The conduct grade of D1 in secondary school is also not as good as that in primary school.

34.  It was said that D1 was impulsive and weak in emotion control and social skills and he was easily in conflict with peers.  Since the grant of care or protection order in late November 2019, D1 has cut nocturnal activities to fulfil the curfew requirements.

35.  It was revealed in the report that since primary school D1 was bullied. He had therefore sought protection by approaching D2 whom was understood to be a Form 4 student and a famous Triad member of “Shing Wo”.  He joined D2 as his follower a few months before the present offence.

36.  Medical history of D1 confirmed that D1 was diagnosed of ADHD with the features of Oppositional Defiant Disorder.  According to a medical officer, D1 may be impulsive due to ADHD and did not consider the consequence of his actions sometimes and it may partially affect his delinquent behaviour.

37.  It is said that the 1^st defendant failed to adhere also to the prescribed daily drug intake regarding the ADHD.

38.  D1 informed the probation officer that he was aware that ‘Coke’ means cocaine and is a kind of dangerous drug.  He took the job for excitement, not for money, as there was the risk of being arrested by police.

39.  The probation officer confirmed the defendant had been complying with curfew requirements and had made no trouble in the supervision period under the care or protection order period.

40.  D1 had been remanded in Tuen Mun Children and Juvenile Home (TMCJH) of Social Welfare Department and Pik Uk Correctional Institute (PUCI).  He said in PUCI he would be given a number and called by that number which made him feel like a prisoner and he felt normal and better in TMCJH.

41.  D1 said although he wanted to go home as early as possible, he would like to stay in TMCJH for a relatively longer period of time because more time is needed for him to become stable.  D1 also revealed his fear with CSD institutions.

42.  Family members of D1 said D1 was not bad in nature but simple-minded and very susceptible to peer influence, for such he was made use by bad people to commit the present offence.

43.  Mother showed no confidence that she could monitor D1 closely and she requests this court to send D1 to receive residential training in a confined setting in view of D1’s young and immature personality.  She asks for a longer period of residential training to substantiate his progress and she considers TMCJH a good choice.

44.  Other family members, as well as the outreach social workers who knew D1 also share the same view.

45.  Mr Simon Lau, the probation officer, preparing the probation officer’s report says that he agrees with Mr Chan of TMCJH that D1 would benefit from the residential training in a reformatory school which would offer comprehensive a training program for up to three years and that probation without the necessary effective instruments is not recommended.

Rehabilitation Centre, Detention Centre and Training Centre Report

46.  The report says that D1 is medically unfit for detention at a detention centre because of poor exercise tolerance.  He is mentally, physically and psychologically fit for detention in a rehabilitation centre or a training centre.  It is said that D1 is more suited for a rehabilitation centre. 

Young offender’s assessment panel report

47.  The report also says the reformatory school is recommended for D1. 

Discussion

48.  Drug trafficking is a very serious offence.  A person convicted of the present offence on indictment is liable to a fine of $5 million and to imprisonment for life.

49.  D1 was age 13 at the time of offence and presently he is just over 14. He could probably be described as in extreme youth at the time of offence. 

50.  This court has considered all submissions by defence counsel on D1’s behalf, as well as various reports called for before sentencing.

51.  D1 was saved from being sent to prison by reason of his tender age.  On this occasion, taking into consideration of the mitigation submissions, the numerous reports before me, in particular, the defendant’s very young age, his clear record, his impulsiveness probably due to ADHD, despite the very serious nature of the offence, this court is willing to afford the 1^st defendant a last chance.

52.  The 1^st defendant is sent to the Reformatory School for this offence.

53.  D1 should know and should bear firmly in mind that should he reappear in this court for a similar offence, he will be sent straight to an institution managed by the Correctional Services and for a very substantial period of time.

54.  D1 and his family should treasure this last chance.

D2

55.  D2 is now age 17.  He was 16 years and 8 months old at the time of offence.  He is a Form 5 student from a working-class family.  His father is a transportation worker and his mother an insurance agent.  D1 has an elder brother who is in university. 

56.  Defence counsel for D2 says that D2 is an ignorant young man and committed the offences out of momentary greed to earn quick money.  He is very remorseful and pleaded guilty at the earliest opportunity.  It was submitted that but for his honest confession, the 1^st and 2^nd charges would not have been substantiated. 

57.  D2 grew up very close to his elder brother.  As the parents were always busy in earning a living, the elder brother took up the paternal duties to look after D2.  It is said that D2 began to turn astray and lost interest in school after he entered Form 3 as reflected by his grades.  The elder brother tightened up his supervision on D2 and introduced D2 to a neighbour who was identified by the elder brother has having good character to be his friend hoping that the 2nd defendant would be influenced in a positive manner by this neighbour.

58.  The elder brother went to Germany as exchange student from March 2019 to August 2019.  It was admitted that unfortunately during his absence, D2 befriended undesirable peers and got himself into big trouble.

59.  After his arrest, D2 had been remanded in Pik Uk Prison for over a month’s time losing liberty and caused D2 to solemnly reflect on his own deeds and ponder his future.  He soon realised he was really wrong, and that one mistake could cost not only his future but also negative impact on his family. His parents are all disappointed with him, but they still tried to visit as often as possible and they did not give up on him.

60.  Because of the commission of the offence by the 2nd defendant, the elder brother has lost his chance to join the disciplinary force and D2 felt guilty for this impact on his brother’s future.  He was also deeply touched by the support and love his family and vowed to turn a new leaf to become a responsible and law-abiding person.

61.  It was submitted by defence counsel for D2 that D2 and D1 are schoolmates, they live in neighbouring housing estates and they are friends. D1 learned that D2 knew D3 and D1 asked to be introduced, therefore, D2 brought D1 along to a meal with D3.  D1 told D3 that he was also interested in earning quick money. D3 then asked D2 to accompany D1 in trafficking dangerous drugs.

62.  It was said that D2 was foolish enough to believe that if he did not physically possess any dangerous drugs, he was not actually trafficking.  D2 became acquainted with D3 not long before the offences.  He complained to D3 that he was not receiving enough pocket money from his mother and then asked D3 if there were ways to earn quick cash.  In return, D3 told D2 that opportunities to earn quick cash were only available to members of the Society and if he wanted quick cash, he should follow D3.  Ignorantly, D2 then agreed to follow D3 and believed that he himself had become a triad member.

63.  It was further advanced by defence counsel for D2 that upon arrest and under caution, D2 had volunteered literally everything that he had done with D1 under the instructions of D3 which led to the prosecution of the 1^st and 2^nd charges.

64.  Defence counsel also said that this is an illustration of the ignorance of D2.  She implores upon this honourable court to take into consideration of D2’s courage and pleading guilty at the earliest opportunity, his honest confession to the police, his young age, his clear record and his very supportive family and she urged this court to passing a sentence leaning towards his rehabilitation allowing him to reform with supervision.  She also asked this court to consider the option of a training centre for D2.

65.  Family members of D2, his schoolteacher, outreach and social worker have all written letters to this court asking that D2 be treated with leniency.

Discussion

66.  As said earlier, upon conviction on indictment a person is liable to a fine of $5 million and to imprisonment for life.

67.  This court has fully considered all submissions in mitigation by defence counsel, the mitigation letters produced and the authorities cited to this court by defence counsel. 

68.  D2, a man of clear record, is convicted of three charges of conspiracy to traffic in a dangerous drug, the dates of the offence being in June 2019, between 6 and 7 July 2019 and between 10 and 11 July 2019.  Two types of drugs were involved, namely cocaine and ketamine.

69.  D2 was also the person who recruited D1 for D3 in this drug trafficking trade.  He asked D1 to safe keep the dangerous drugs while he himself kept the proceeds from the trade during the trafficking process.

70.  On his own admission, he was involved in numerous trafficking transactions in the 1^st, 2^nd and 3^rd charges. He committed the offences merely for fast money.

71.  As the Court of Appeal in the case of Secretary for Justice v Chau Tsz Tim[1]says:

“Drug trafficking was an evil business and those involved, irrespective of their backgrounds or the circumstances of the offences, could expect no mercy.  For serious drugs trafficking cases, the public interest requires that deterrence of potential offenders must take precedence over the rehabilitation of the particular defendant.  It was not in the community’s interest to sentence even young offenders to a Training Centre, save in exceptional circumstances.  A Training Centre order did not constitute a deterrent sentence[2].”

72.  In that case, D1 and D2 being well over 17 and 18 at the time of the respective offences, were said to be not of extreme youth.  Their relatively young age paled into significance because of the magnitude of the offences.  It was also said that those defendants trafficked in drugs out of greed, to make easy money and apparently influenced by their triad connections.  There were no exceptional circumstances which justified a Training Centre order[3].

73.  It was also said in that case that the Training Centre orders imposed were in that case unduly lenient and fell outside the range of sentences the Judge, applying his mind to all relevant factors, could reasonably consider appropriate.  The only proper sentence was said to be immediate custodial sentence.  It was said also in that case that given the defendants’ relatively young ages and that was review of sentence, the proper sentencing starting point for each of the defendants was 6 years, reduced for a plea.  The final sentence was 4 years’ imprisonment.

74.  This court noted that D1 in that case was 11 months older than D2 in our present case and he had 140 grammes of ketamine in his possession for trafficking at the time which warrants custodial sentence of around 85 months’ imprisonment.  On the other hand, he was only convicted of one single offence.

75.  Following the sentencing approach as in the Chau Tsz Tim case, this court is unable to find any exceptional circumstances in the present case to justify a Training Centre order.  In view of the seriousness of the offence and the circumstances of the case, immediate custodial sentence is the only appropriate sentencing option. 

1^st charge

76.  As submitted by defence counsel for the 2^nd defendant, the amount of drugs in connection with this charge is 20 odd packets of cocaine. D2 acted as a lookout, while D3 handed the cocaine to D1 in the McDonald’s Restaurant.  Both D1 and D2 made three to four deliveries of cocaine to customers. D2 received $390 as a reward. 

77.  D2 did not say whether the packets of dangerous drug on that occasion was in the same packaging as the one seized for the 3^rd charge in our case.  For the benefit of D2, this court would impose a deterrent sentencing starting point as if the total quantity of 20 packets of cocaine was only one gramme, therefore, justifying a sentencing starting point of 2 years’ imprisonment.

78.  The 2^nd defendant has pleaded guilty and is therefore entitled to the full one-third sentencing discount.  D2 is sentenced to 16 months’ imprisonment for this charge. 

79.  As submitted by defence counsel for D2, the offence was only discovered upon his confession.  For this reason, the court is willing to further discount the sentence by 4 months bringing the sentence to 12 months’ imprisonment.

2^nd charge

80.  D2 said that he and the 1^st defendant delivered 5 “oranges”, ie packets of ketamine, to customers via 5 dangerous drugs transactions.  He also took back 1 “orange” from a customer and re-delivered it to another customer.  He received $200 as reward.

81.  Again, as submitted by defence counsel for D2, the amount of ketamine involved in this case is of unknown quantity.  This court will therefore adopt a sentencing starting point of 2 years’ imprisonment as suggested by defence counsel, on the very safe assumption that the 5 “oranges” of ketamine would weigh no less than one gramme.

82.  Again, by reason of D2’s guilty plea, D2 is entitled to the full one-third sentencing discount and is sentenced to 16 months’ imprisonment. Again, this offence surfaced due to the confession of D2 and for this reason the court is willing to further discount his sentence by four months bringing it to 12 months’ imprisonment.  The 2^nd defendant is, therefore, sentenced to 12 months’ imprisonment for this charge.

3^rd charge

83.  The total amount of cocaine seized for this charge is 5.09 grammes of cocaine.  D2 together with D1 had on instructions of D3 already sold and delivered cocaine to three customers during the time of this offence.  Save that they had received, according to the 2^nd defendant, $4,500 in return for the transactions, this court has not been informed of the exact amount of cocaine sold and delivered.

84.  This court, therefore, has to assess the quantity of cocaine involved with Charge 3 based on the evidence before this court.  The same includes 5.09 grammes of cocaine seized from D1 and a known quantity of cocaine already trafficked at the material time, for the 3^rd offence.

85.  The packets of the cocaine seized were packed into two plastic bags, one with 10 green packets and 2 yellow packets (packet 1) containing 2.4 grammes of cocaine and the other bag with 9 green packets and 5 yellow packets containing 2.69 grammes of cocaine (packet 2).

86.  Each yellow packet therefore contains 0.165625 grammes of cocaine and each green packet contains cocaine of 0.206875 grammes[4].

87.  D2 admitted having sold cocaine to three customers.  For the benefit of D2, the court would assume that the 3 transactions each involved a small yellow packet of cocaine.  The total quantity of cocaine for the three transactions were, therefore, 3 times 0.165625 grammes, equals to 0.496875 grammes, which is rounded up to 0.49 grammes of cocaine. 

88.  In the case of D2, the total drugs involved for this 3^rd charge is, therefore, 5.09 plus 0.49 grammes of cocaine, equivalent to 5.58 grammes of cocaine.

89.  Again, based on the 5.58 grammes of cocaine and adopting the tariff in Lau Tak Ming case, the sentencing starting point would be 44 months’ imprisonment.  D2 is entitled to the full one-third sentencing discount by reason of his guilty plea.  He is, therefore, sentenced to 29 months and 10 days’ imprisonment for this charge.

90.  The 2^nd defendant has committed these offences all within the period of June 2019 and mid-July 2019.  Considering the totality principle and the overall culpability of the 2^nd defendant in this case, this court considers that the total sentence of 35 months, 10 days’ imprisonment is the just and proportionate sentence for D2 in the whole case.  Accordingly, the court orders that 3 months’ imprisonment for each of the 1^st and 2^nd charge is to run consecutive to the sentence in the 3^rd charge.  The rest of the sentence for the 1^st and the 2^nd charge is to run concurrent with the sentence in the 3^rd charge, bringing the total sentence for D2 to 35 months and 10 days’ imprisonment.

D3

91.  D3 is now age 26 years old.  He was age 25 at the time of the offence.

92.  He was born in Mainland in year 1994 and came to Hong Kong in year 2011.  He received education up to Form 4 in Hong Kong but he dropped out of school due to financial difficulty.  His stepfather was in his 80’s and was suffering from chronic illness.  D3 had been working as a kitchen worker and also as a construction site worker earning on average monthly of $17,000. 

93.  The amount of drugs seized on this occasion for the 3^rd charge is 5.08 grammes of cocaine.  On D3’s own admission, there were already 3 transactions for cocaine totalling $4,000 prior to them being intercepted by police.

94.  Defence counsel for D3 asked this court to calculate the amount of drugs involved in the charge and to make assumptions favourable to D3 should there be no evidence on the quantity of drugs trafficked or intended to be trafficked.

95.  D2 admitted recruiting D1 and D3 in June 2019, but defence counsel for D3 says that D3 is not the mastermind.

96.  Defence counsel for D3 also submitted that in connection with the enhancement of sentence by reason of D3’s commission of the offence involving minors that this court should not enhance excessively the sentence and starting point on D3 who has a clear record.

97.  He submitted that there are no legal guidelines in the range of enhancement and the case of HKSAR v Ng Hon Keung, CACC 211/2011, was cited where it is said:-

“It will not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case. … To simply apply a percentage figure may result in an excessive total sentence.”

98.  She also referred this court to the case of HKSAR v Chan Ka Shing, CACC 64/2011.  The Court of Appeal admonished that:-

“When enhancing the sentence pursuant to section 56A(2) of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement.”

And:-

“The court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”

99.  It is said by defence counsel that the 3^rd defendant has been working hard for the welfare of his family, but he has lost all his savings and incurred heavy debts due to business failure.  He then met dubious peers and as he was vulnerable, he committed the offence in order that he would repay his debts and release his mother from working so hard for a living.

100.  Defence counsel for D3 also asked this court to give the defendant a sentencing discount by reason of his guilty plea.  She handed to this court mitigation letters from the defendant, his biological fathers, two cousins and elder brother.  The defendant expressed his remorse for his mistake and his relatives all state that the defendant worked hard to earn a living and he committed the offence because he is heavily in debt due to a failure in his business.

101.  The arrangement between D1, D2 and D3 was that D1 would arrange for pick-up and sale of dangerous drugs and receiving orders from customers.  He would then give instructions to D1 and D2 to collect the dangerous drugs.  He asked them to wait for his orders and once he received the orders from customers, he would inform D1 and D2 who then go and deliver the drugs, collect the drugs money and to keep the drugs money for D3, counted the dangerous money to D3, and then D3 would pay D1 and D2’s reward.

102.  D1 was age 13 and D2 was age 16 at the time, whilst D3 himself was age 25.  Clearly, amongst the three of them, D3 plays the leading role. 

103.  The court now considers various factors in the case of HKSAR v Tam Pui Kay, HCCC 64/2015.  As said earlier, no doubt the role of D3 is leader amongst the three defendants.  There are at least six persons involved in the whole operation with clear division of labour.  According to D3, apart from the defendants here, there are three other males involved.

104.  It is noted that the conspiracy only lasted for a short time, ie, since June 2019 and they were arrested 11 July 2019.

105.  In connection with the amount of drugs trafficked under the 3^rd charge in D3’s case, as D3 has submitted that 2 units, ie, two yellow packets and two “strokes”, ie, two green packets, were transacted between the evening of 10 July 2019 and early morning of 11 July 2019, the quantity of cocaine transacted here is, therefore, 2 times 0.165625 grammes of cocaine plus 2 times 0.206875 grammes of cocaine equals to 0.33125 grammes plus 0.41375 grammes equals 0.745 grammes of cocaine.  The total cocaine covered in this charge is, therefore, 5.09 grammes plus 0.745 grammes equals 5.835 grammes.

106.  Again, applying the same guideline in Lau Tak Ming case, the appropriate sentencing starting point should lie at 45 months’ imprisonment 

107.  D3 here has recruited two young persons, ie, D1 and D2, especially D1 who is of extreme youth in the operation.  Having considered authorities on enhancement cited to this court, in the circumstances of this case, in particular, the two young persons recruited included one of extreme youth, this court finds it appropriate to enhance the sentencing starting point by 9 months to 54 months’ imprisonment.

108.  It is settled that the personal background of defendants in general can hardly be a valid mitigating ground.  D3 has a timely plea for which he is entitled to the full one-third sentencing discount.  Accordingly, he is sentenced to 36 months’ imprisonment for this charge.