The 1st defendant was acquitted after trial of Count 1. The 2nd defendant was convicted after trial of Counts 1, 2, and 3 by a unanimous jury and of Count 4 by a majority.
The 1st defendant had pleaded guilty at the earliest opportunity to a separate charge of using an identity card relating to another person in HCCC 48/2022. I will deal with that sentence today. It was not dealt with at the same time as other defendants in that same case but separately because the 1st defendant was awaiting a verdict from the jury for Count 1 in this case. He pleaded guilty to that count on 16 May 2022 and was committed to the Court of First Instance for sentence with three other defendants jointly charged with the 1st count here.
The facts of this case are that on 28 November 2019, Narcotics Bureau raided a sophisticated trafficking dangerous drugs operation. The operation included two warehouses, at least six men, several vehicles, many mobile phones, three walkie-talkies for communicating clearly between vehicles, people in warehouses, as well as GoPro cameras filming the process of dealing with a large amount of dangerous drugs in the first warehouse.
Rather extraordinarily, the police were able to seize footage from GoPro cameras set up in the first warehouse which recorded about five hours. It documented this drugs operation. On that day, a GoGoVan driver was hired by the 1st defendant to pick up two pallets of cowhides and deliver them to the first warehouse in Sha Tau Kok. This is the location of Count 1. Unbeknownst to him, those cowhides concealed packets of cocaine. He arrived at about 2 pm as recorded by the GoPro footage.
There was then a filmed record of men, at times between two to four men, dealing with those cowhides. The cowhides were cut open, drugs were retrieved and weighed. The GoPro footage even included close-ups of the scales weighing packets of cocaine. The recording stopped at about 5.30 pm and it would appear from those recordings that by then the bulk of drugs had been cut out, uncovered, weighed, and packed into suitcases. The suitcases were transported to the second warehouse not far away.
In the second warehouse, the police later that evening found two suitcases full of cocaine. They found a tub of transparent resealable plastic bags weighing 1 kilogramme each containing cocaine. They found paraphernalia associated with unpacking, packing, and weighing dangerous drugs. Clearly, some of the packets of dangerous drugs from the cowhides had been unpacked, weighed, and spooned into these transparent resealable plastic bags. All the cocaine found in the second warehouse was the subject of Count 3, a total of 33,314 grammes of a solid containing 26,835 grammes of cocaine.
At the same time as the police raided the first warehouse, a police team of three instructed to wait at the mouth of the village of the second warehouse stopped a vehicle coming out. Their job was to stop any vehicle coming out of that village. They drove their vehicle in front of and stopped a vehicle driven by the 2nd defendant.
When the 2nd defendant’s vehicle was intercepted, he and a passenger got out and ran. The 2nd defendant was subdued after a long struggle. Hence, the 4th count of resisting a police officer in the due execution of his duty.
In the footwell of the driver’s seat, the police subsequently found a transparent resealable plastic bag of cocaine, and identical bag to those found in the second warehouse. This bag of cocaine was the subject of Count 2, a total of 952 grammes of a solid containing 791 grammes of cocaine.
The police found the key for the second warehouse on the 2nd defendant’s person, which led to a search not long after his arrest and the discovery of the drugs of Count 3.
That police raid on the first warehouse included the arrest of the 1st defendant and three other men who pleaded guilty to Count 1 and were dealt with together in HCCC 48/2022. After this raid on the first warehouse, the police found the drugs of Count 1 in a suitcase inside the premises, a total of 1,456 grammes of a solid containing 1,215 grammes of cocaine.
The 1st defendant when arrested at that raid of the first warehouse produced an identity card belonging to another to conceal his identity. These are the particulars of Count 2 of HCCC 48/2022.
Mitigation
The 1st defendant is now 32 years old and has 11 previous convictions from six court appearances. When arrested for Count 1 in this case, there was a warrant out for his arrest, having jumped bail in a District Court case, a theft and a fraud conviction. He was sentenced in his absence to 3 years and 6 months’ imprisonment.
Mr Leung has given an explanation that he presented an identity card belonging to another to conceal his identity because he had absconded from his District Court trial in September 2013. That may very well have been the case and certainly there was a warrant out for his arrest, but I suspect he was desperate to conceal his identity in relation to this case concerning trafficking in dangerous drugs. He may have been acquitted by the jury but for the purposes of sentencing this count having heard all the evidence, I am of the view that that is one of the reasons.
The 2nd defendant is now 33 years old and has one previous conviction. In May 2008, he was sentenced to 5 years and 9 months by the Court of First Instance for trafficking in dangerous drugs. Mr Lo urges me not to consider that an aggravating factor as it dates back to May 2008.
Mr Lo has said all he can say in mitigation. There is not much to say when the defendant was convicted after trial by a jury. He is separated from his wife, who has custody and care of their 9-year-old child. There is not much else Mr Lo can say in light of the jury’s decision to convict the 2nd defendant of all counts and in light of the quantity of dangerous drugs trafficked in the first three counts. The total amount of cocaine in Counts 1, 2 and 3 add up to 28,841 grammes.
Sentencing
The 1st Defendant
I have considered for the 1st defendant the reasons why he would use an identity card belonging to another person. He had it on him already ready to use and conceal his identity if arrested. The reason he intended to use it are serious. I am sure he was firstly concealing his identity because of the drugs in the warehouse and secondly because he knew there was a warrant out for his arrest for a fraud and theft case. I will take a starting point of 24 months’ imprisonment.
The 1st defendant did plead guilty to this count at the earliest opportunity and therefore I will apply a discount of 8 months to that starting point and sentence the defendant to 1 years and 4 months’ imprisonment for using an identity card belonging to another, for Count 2 of HCCC 48/2022.
The 2nd Defendant
First, I will deal with Count 4. The maximum term of imprisonment for committing the offence of resisting a police officer in the due execution of his duty is 2 years’ imprisonment. Considering the facts of this case and the description of the acts of resisting the arresting officer and others who came to his assistance, I intend to take a starting point of 15 months’ imprisonment.
I turn to the three counts of trafficking in dangerous drugs. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. That was very recently discussed and reiterated by the court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take. They are assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized.
The guidelines for trafficking in cocaine is the same as for those who traffic in heroin. It makes sense to add the cocaine of all three counts together and deal with the three counts globally.
Here the quantity is very significant, a total of 28,841 grammes or 28.841 kilogrammes of cocaine. According to HKSAR v Abdallah [2009] 2 HKLRD 437, for those that has trafficked in over 15 kilogrammes of cocaine, the starting point is above 30 years at the sentencing judge’s discretion. This would also apply to those that traffic over 15 kilogrammes of ‘Ice’.
In HKSAR v Chu Ho Wa [2022] 1 HKLRD 359, the Court of Appeal held that:
“While the appropriate bracket for more than 15,000 grammes of ‘Ice’ was over 30 years’ imprisonment at the sentencer’s discretion, anything above 30 years’ imprisonment was an extremely long sentence and it was neither prudent nor possible to apply a mathematical increase where vast quantities were involved.”
This must apply to this case, the situation and facts here for the 2nd defendant.
After considering the quantity of drugs and hearing mitigation, I am prepared to exercise my discretion and adopt 33 years’ imprisonment as the starting point.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. He is seen on GoPro footage in the first warehouse in the afternoon with other men cutting drugs out of the cowhide and weighing them. The evidence that followed is he was later arrested with 1 kilogramme of a solid containing 791 grammes of cocaine in his vehicle, obviously leaving the second warehouse for which he had a key containing the bulk of the drugs retrieved earlier that day from the cowhides.
There is evidence of unpacking, weighing, and repacking drugs in the second warehouse. The bag found in his vehicle was from the drugs in the cowhides opened, weighed, and repacked. I will consider his role as one of a storekeeper, courier, worker, and a foot soldier. There was no evidence he was one of the main organisers.
I accept that submission of his role for the purposes of sentencing. If he had been a main organiser, he would have been smart enough not to be in the GoPro footage or in the warehouses.
Therefore, taking into account the third step of where within the guidelines the defendant should lie, his sentence for all counts will be determined by the starting point I have found appropriate for the quantity of dangerous drugs involved.
Accordingly, I find the appropriate starting point to be 33 years’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors, I do not find any to consider.
The last step is to look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of not only the offence but also the defendant. It is a very significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Therefore, let me deal with the 1st defendant, he is sentenced to 1 year and 4 months’ imprisonment for Count 2 of HCCC 48/2022.
The 2nd defendant, for Count 1, he is sentenced to 33 years’ imprisonment; for Count 2, 33 years’ imprisonment; Count 3, 33 years’ imprisonment; Count 4, 15 months’ imprisonment. I order all four counts to be served concurrently. The 2nd defendant will serve a total of 33 years’ imprisonment.