COURT: The two defendants are charged with the offences of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and also a 2nd count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), (3) and 39 of the Dangerous Drugs Ordinance and sections 159A and 159C of the Crimes Ordinance.
In respect of the 1st count of trafficking, it is alleged that they jointly trafficked in 83.1 grammes of a solid containing 73.4 grammes of cocaine on 2 June 2021. In respect of the 2nd count of conspiracy, it is alleged that, between the 1st day of April and the 2nd day of June 2021, they conspired together with other person unknown to unlawfully traffic in cocaine.
They both pleaded guilty to the charges on 4 December 2023 before a magistrate and confirmed their pleas before me today.
According to the Summary of Facts to which they agreed at the time of the guilty plea, on 2 June 2021, the police intercepted a taxi at about 10.30 pm in Tsim Sha Tsui. At that time, the taxi was seen parked at Kimberley Road in Tsim Sha Tsui and the 1st defendant was on the rear passenger seat. When he was asked to alight from the taxi, he placed an object with tissue wrapping on the rear passenger seat. That wrapping was found to contain one transparent resealable plastic bag containing suspected cocaine. He was also carrying a paper bag which was later found to contain three transparent resealable plastic bags containing suspected cocaine. At that time, he had two mobile phones and cash of $19,932.70 with him.
Under arrest and caution, the 1st defendant said his family was poor and he was unable to get a job. He distributed the stuff to earn money. In a later video-recorded interview, he admitted under caution that “the stuff” meant the dangerous drug of cocaine. He said that in March 2021, he came to know the 2nd defendant in this case, who was known as “Hin Chai” to him.
In April 2021, the 2nd accused asked him to distribute dangerous drug to earn money and he agreed. Subsequently, he called a telephone number given by the 2nd defendant and he received instruction of taking a taxi to somewhere in Tsim Sha Tsui to receive four to five packs of dangerous drug for distribution. He collected the drug as instructed, and then he received instructions from the 2nd defendant to distribute the drug in Kwun Tong and Tsing Yi. Several days later, the 2nd defendant gave him $4,700 cash as reward for the deliveries.
On 2 June 2021, the 2nd defendant asked if he was free to deliver drug and he agreed. As instructed by the 2nd defendant, he called the same telephone number and he took a taxi to collect the drug from a male outside the 7-Eleven store at Cameron Road. And then he followed the 2nd defendant’s instructions to deliver the drug, and he took taxi throughout the journey as instructed by the 2nd defendant. The 2nd defendant had told him that the drug was cocaine. He was asked to pay for the taxi fare first and the 2nd defendant would reimburse him afterwards.
In respect of his deliveries on that day, he said he had delivered one pack of cocaine to a male at Canton Road in Tsim Sha Tsui. And then he also delivered one pack of cocaine to a female in Ma Tau Wai and collected $18,500 from her. Two packs of cocaine were delivered to a male in Kwun Tong, and half a pack of cocaine was delivered to a male in Kwai Chung Estate. Another half pack was delivered to a male in Tsuen Wan and half pack was delivered to a male in Kwai Chung. So a total of four full packs and three half packs were delivered before he was intercepted by the police. He said that the location, the quantity and the size of the deliveries were all provided by the 2nd defendant. He would also collect payment if the 2nd defendant had provided information about the amount of money.
In respect of the two mobile phones seized from him, he said one was used for drug delivery and the other one was for his personal use.
The 2nd accused was arrested on 4 June 2021. Under caution, he said, “The young guy told me that he was in need of money, so I paid him for helping me in the delivery of dangerous drugs.” At the time of his arrest, he had one mobile phone and cash of $7,910 with him.
In a subsequent video-recorded interview, the 2nd defendant said he came to know the 1st defendant about a year ago. About half a year ago, he came to know a male called “Ah Wai” at a bar in Tsim Sha Tsui. Ah Wai asked him to find somebody to deliver dangerous drug and that the 2nd defendant would be given $1,000 as reward for each share.
On 1 June 2021, he introduced the 1st defendant to Ah Wai for delivery of drugs and the 1st defendant agreed. He also gave the telephone number of Ah Wai to the 1st defendant for their own direct contact for the drug delivery. He said that he found somebody to traffic in the drug because he had no money, and this was the first time he helped Ah Wai to find somebody to deliver drug. When being asked about the reward for each delivery, he said that it seemed to be $100 for each location. And he said that the money found on his person at the time of arrest belonged to his girlfriend.
Subsequent examination of the drugs found with the 1st defendant on the day of his arrest confirmed that they were a total of four packets, containing 83.1 grammes of a solid containing 73.4 grammes of cocaine in total. The estimated street value of the cocaine seized was over HK$125,000 for crack cocaine and over HK$97,000 for cocaine powder.
By their guilty pleas, both the 1st and the 2nd defendant admitted that at the material times they unlawfully trafficked in the drug particularised in the 1st count and conspired together with another person to traffic in cocaine.
The 1st defendant is now 18 years old. At the time of the offence, he was 15 years and 9 months old. He had just quitted school and he has a clear criminal record. In mitigation, counsel Mr Gordon Wong informed this court that in fact he grew up with his grandmother. Counsel said that at the time after he quitted schooling he worked as a part-time takeaway meal delivery worker. Counsel asked the court to take into account the fact that he has a supportive family and he pleaded guilty at a very early stage. A number of mitigating letters provided by the 1st defendant, his parents and his other family members were also given to this court.
Counsel asked this court to take into account the fact that he has provided genuine assistance to the police, which led to the arrest of the 2nd defendant. As a result, counsel said he is entitled to a discount of no less than 40 per cent.
In respect of the drugs related to the 2nd count of conspiracy, counsel said the amount of drugs being delivered in April 2021 was uncertain. He asked this court to give the benefit of doubt to the 1st defendant and to give a slight upward adjustment of 3 months to the quantity found in June.
In respect of the 2nd defendant, he was 22 years old at the time of the offence and now 26 years old. He has a clear record and he studied up to Form 3. According to counsel Ms Vivian Wong, the court was informed that his mother was ill since 2010 and she was wheelchair-bound for many years. Counsel said that he worked as an apprentice in a hair salon. He also worked as a vehicle mechanics apprentice after he quitted school and made some contribution to his family. However, he was laid off in 2019 and he remained unemployed since then, and he committed the present offences because of the financial reward.
Counsel said he has a supportive family and submitted letters of mitigation written both by the 2nd defendant and also members of religious bodies. Counsel said that he has taken practical steps to rehabilitate and also he had completed a course whilst remanded in custody. Of course, counsel asked this court to take into account his guilty plea at an early stage.
But the fact is that he recruited the 1st defendant, a minor, to deliver and distribute the drug in this case. Counsel submitted that at that time, the 2nd defendant did not pay attention to the age of the 1st defendant and he has no intention to exploit his youth. Counsel submitted that the 2nd defendant was not the mastermind. He was also acting under the direction or instruction of another person called Ah Wai. He was asked by Ah Wai to make the deliveries, but he was too scared to do so. Therefore, he looked for somebody else to do the delivery in return for a smaller reward instead.
In respect of the amount of the drug being trafficked in April 2021 in the conspiracy count, Ms Wong also submitted that the evidence is insufficient for this court to draw any inference or assumption as to the quantity. She also suggested this court to make a slight upward adjustment to the notional starting point to reflect the overall gravity.
In respect of sentencing, I bear in mind the approach as stated by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290. Also, I bear in mind what the Court of Appeal said in the case of Lee Ming Ho [2024] 1 HLKRD 1186. The court stated that the offender, having engaged a young person to assist in the trafficking of the drugs, is to be considered under the role and culpability of the offender, that is, it is a matter to be considered in determining the starting point rather than a matter to be treated as aggravation for enhancement of sentence.
I have also taken into the account the principles specified in the case of Chan Kam Loi CACC 410/2012 and also the case of Chung Ka Lun [2018] 4 HKLRD 229. Where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts of the case, and the facts relied upon will inevitably lean in favour of the defence.
Also, when taking into account the sentencing principle, the court should bear in mind that the matter was an ongoing conspiracy which would continue through until somebody was arrested. A conspiracy involving multiple transactions is much more serious than trafficking on one single occasion.
In respect of the fact that a minor or a young person is being engaged in the trafficking of the drugs, section 56A of the Dangerous Drugs Ordinance entitles the court to enhance the sentence. I bear in mind what the Court of Appeal said in the case of Ng Hon Keung [2012] 1 HKLRD 1017, “It will not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case.”
In respect of the situation of the 1st defendant, I bear in mind the principles stated by the Court of Appeal in the case of Lo Sze Tung Stephanie [2019] 1 HKC 309. In that case, the court said that the range of 40 per cent to 50 per cent discount is appropriate, where the nature and extent of the assistance rendered by a defendant with no risk of harm to himself, where the assistance is considerable. In the present case, the prosecution accepts that the 1st defendant has given valuable assistance to the police, which led to the arrest of the 2nd defendant.
I shall now come to the sentence of the individual counts. I will deal with the 2nd count of conspiracy first. According to the Summary of Facts agreed by the defendants, there were a total of two occasions of deliveries, one in April and the second one on 2 June 2021. On 2 June, according to the admission by the 1st defendant, he had already delivered four full packs and three half packs of cocaine before he was intercepted by the police. At the time of his arrest, he had three full packs and one half pack of cocaine on his person. The exact quantity of drug involved in each of those packs can be found in paragraph 11 of the Summary of Facts.
I will attempt to calculate the quantity of drug involved in the four full bags and three half bags already delivered by using the same ratio. According to my calculation, the quantity of drug that he had already delivered on that day is 115 grammes of cocaine. By cocaine, I mean cocaine narcotic. So adding together with the quantity of cocaine narcotic found at the time of his interception, the total quantity being involved on 2 June is 188.4 grammes of cocaine narcotic.
In respect of the quantity of drug being dealt with in April, he stated under caution that he had collected and then delivered four to five full packs of drug to others. Taking the most favourable view to the defence, I consider that only four full packs of drug were delivered.
In respect of the quantity of the cocaine involved, I consider that there is sufficient evidence from the Summary of Facts for me to make reference to the quantity of drug being seized on 2 June. In April, the 1st defendant called somebody on a telephone number provided by the 2nd defendant before he collected the drug. On 2 June, he also called the same number and received instruction as to the collection of the drug. On both occasions, he collected the drug from a male outside the 7-Eleven store at Cameron Road in Tsim Sha Tsui. And on both occasions, he was acting under the instruction of the 2nd defendant. I also take into account the proximity in time. One is in April and the other one is in the beginning of June.
In respect of the quantity of drug found in June, the respective narcotic content is 21.5 grammes, 20.9 grammes and 20.7 grammes of cocaine narcotics in the full packs. Taking a view most favourable to the defence, I will adopt 20.7 grammes as the narcotic content of the four packs in April. So I arrive at the conclusion that the narcotic content involved in the April delivery is 82.8 grammes of cocaine.
Adding that together to the June deliveries, the total quantity of drug involved in the conspiracy count is 271.2 grammes of cocaine. According to the guideline for trafficking in cocaine, to traffic between 200 to 400 grammes of cocaine will entitle the court to adopt a starting point of 12 to 15 years. On an arithmetic calculation, the starting point would be one of 13 years for the said quantity of drugs.
Now, in respect of the role and the culpability of the two defendants, I bear in mind that the court is now facing a charge of conspiracy. The conspiracy had a period of about two months long. Even though deliveries were only made on two occasions, but there were multiple incidents of delivery to different customers on those two occasions. I accept that the role of the 1st defendant is one of being a courier in the case. However, he was not only involved in the delivery of drug. He was also involved in the collection of drug from a certain supplier before the deliveries. He also received payment as instructed by the 2nd defendant. Taking into account all the circumstances, I consider the notional starting point for the 1st defendant should be one of 13 years and 3 months.
In respect of the 2nd defendant, it is submitted by counsel that he was not merely a courier. He recruited the 1st defendant to collect and to distribute the drugs. He was responsible to pay the 1st defendant the delivery reward and he also gave instruction about the collection of money from the customers. All the details of the deliveries were given by him to the 1st defendant. No doubt he played a more important role in the hierarchy of this syndicate. He can be said to be an operator even though he may not be the mastermind.
Also, the fact that he used the 1st defendant, a minor, to collect and distribute the drug is an aggravating feature. Under the law, it does not really matter whether he was aware of the actual age of the 1st defendant or not, and there is no such requirement under section 56A of the Dangerous Drugs Ordinance. The court is mindful that a clear message must be sent to the drug traffickers who use minors in the trafficking activities.
Having assessed the role and the culpability of the 2nd defendant, I consider that the appropriate notional starting point should be 14½ years’ imprisonment. There being no other aggravation, the appropriate starting point after trial for the 1st defendant is 13 years and 3 months and for the 2nd defendant is 14½ years.
The 1st defendant has provided valuable assistance to the police, leading to the apprehension of the 2nd defendant. I agree that he is entitled to a 40 per cent discount as a result of his guilty plea and the assistance. I do not consider his family circumstances or other personal matters as effective mitigation. So applying the 40 per cent discount, the ultimate sentence for Count 2 for the 1st defendant is 7 years and 11 months’ imprisonment. I give him a further discount of 5 months, taking into account his youth. So the ultimate sentence for the 1st defendant on Count 2 is 7½ years.
In respect of the 2nd defendant, he is entitled to a one-third discount for the guilty plea. I do not see any other effective mitigation, so he is sentenced to 9 years and 8 months’ imprisonment accordingly.
I shall now come to the sentence in respect of Count 1. Count 1 involved a total of 73.4 grammes of cocaine narcotic. According to the guideline, 8 to 12 years’ starting point is appropriate for trafficking between 50 to 200 grammes of cocaine. Taking into account the fact that the 1st defendant was only a courier, the appropriate starting point should be 8 years and 7 months’ imprisonment.
In respect of the 2nd defendant, I also bear in mind his role and culpability as stated earlier for the 2nd count. So for him, I adopt 9 years as the notional starting point.
In respect of the 1st defendant, again, a 40 per cent discount is given. That reduces the sentence to 5 years and 1 month. One month is further reduced to reflect his youth. So in respect of the 1st count, the 1st defendant is sentenced to a total of 5 years.
In respect of the 2nd defendant, the only mitigation is his guilty plea at an early stage. So after the one-third discount, he is sentenced to 6 years’ imprisonment.
The quantity of drugs involved in the 1st count has already been included into the conspiracy charge. Therefore, it is appropriate to order the sentence on the 1st count to be served concurrently with the 2nd count.
So the ultimate sentence for the 1st defendant is one of 7½ years.
And in respect of the 2nd defendant, it is 9 years and 8 months’ imprisonment.