Admitted Facts
The Admitted Facts disclosed that police were conducting an anti-narcotics operation on 10 March 2019 at around 11.50 pm at Flat D, 37th Floor, Tower 1, Century Gateway, Tuen Mun. D1 was seen using a key to open the door to the premises and he was intercepted. Upon search of the rucksack carried by D1, the police found 15 packets containing what was later confirmed to be 14,857 grammes of a solid containing 11,128 grammes of cocaine. After arrest and under caution, D1 said a person called “Ah Hei” had asked him to take the ‘coke’ home for storage. That is the 1st count.
With a search warrant, the premises were searched. Inside one of the rooms, the police found 24 packets inside a carton box containing which was later confirmed to be 5,924 grammes of a solid containing 4,410 grammes of cocaine. That is the 2nd count.
D1 was the tenant of the flat in question. D1 was arrested, and under caution, he said it was “Ah Hei” who had asked him to store the ‘coke’ at home.
D1 attended a video-recorded interview and he gave details of how he came to know “Ah Hei” and how he agreed to work with “Ah Hei” in dealing with ‘coke’ which he knew was dangerous drug. D1 also described how on 7 March he met up with a man driving a car with registration number VT 4309 and how he took the carton and bag containing ‘coke’ from the passenger seat back to the flat which he rented with money provided by “Ah Hei”. He also described having delivered six bags of ‘coke’ on 8 March upon “Ah Hei”’s instruction. He was promised $6,000 per kilogramme of drug delivered.
On 10 March, he was instructed to take delivery again and he collected a bag of ‘coke’ from an unknown man driving the same car VT 4309. He placed the bag of ‘coke’ inside his rucksack and was arrested by the police.
At about 1.33 am on 11 March 2019, the police conducted another anti-narcotics operation at Flat B, 26th Floor, Block 1, Central Park Towers at Tin Shui Wai. D2 was seen walking past and then ran from the flat (the door of which was opened) towards the lift lobby. D2 was intercepted. Another male who was arrested later admitted to have acted as a lookout for a male with a particular phone number, 64851058. The mobile phone seized from D2 was with that number.
With a search warrant, the flat was searched. A total of 17 packets containing what was later confirmed to be 5,146 grammes of a solid containing 3,884 grammes of cocaine, a plastic box containing traces of cocaine, some resealable bags, a sealing machine, two electronic blenders and two electronic scales were seized from the flat.
D2 was arrested, and under caution, he said he collected the ‘coke’ for money as he owed a large debt. D2 was the tenant of the flat in question.
D2 attended a video-recorded interview and he disclosed that he came to know someone called “Ah Cheung” who had asked him to store dangerous drug for a reward of $5,000. “Ah Cheung” paid for the rental of the flat in question. An unknown person passed him the dangerous drug and he stored them in the flat and waited for instruction.
The car with registration number VT 4309 was subsequently found to be registered in D2’s name.
The street value of the cocaine seized was estimated to be about 24,242,194 to 24,760,743.
Background and mitigation - D1
D1 was born in 1995 in Hong Kong and he is now 25 years of age. He is a single man. He had one previous conviction of dealing with goods to which Dutiable Commodities Ordinance applies and for which he was fined $12,000 in 2015. He received education up to Form 5 level and worked as a delivery worker at the time of the arrest, earning $20,000 per month.
In mitigation, his counsel, Ms Maria So, gave further background about D1. D1’s parents divorced when he was young. He used to live with his mother and siblings until he moved out several years before his arrest. His father, with whom he kept a good relationship, suffers from stomach illness, high blood pressure, high cholesterol and diabetes. D1 quitted school after Form 4 and started working at odd jobs such as restaurant workers, salesperson. His most recent job before his arrest was working as a delivery worker, earning 20,000 to 30,000 per month. And D1 gave around 4,000 to $6,000 per month to support his family. However, D1 lost his job in 2018.
Shortly before D1’s arrest, D1 and his girlfriend found out that the latter, that is the girlfriend, was pregnant, and money was needed for medical check-ups. D1 also owed gambling debts. And D1 did not want to burden his family, so he foolishly agreed to deliver drug to earn quick money. He followed instructions and rented the flat, collected and delivered the dangerous drug as instructed. D1 had no idea of the quantity or the type of dangerous drugs in the packages. D1’s role was that of a messenger.
He had been cooperative with the police upon his arrest. D1 is very remorseful. Since his incarceration, his family has been giving him support and visited him regularly. His then girlfriend had an abortion and left him. D1 is remorseful and will study while in custody so as to start a new life when he is released.
D1’s mother and younger sister have written to court. They reiterated that it was out of stupidity that D1 committed these offences in order to raise money for a wedding and for the unborn child. D1 was remorseful and his family members visited him on a regular basis. They begged for leniency from this Court.
D2
D2 was born in 1991 and he is a married man. He had two previous convictions: one for trafficking in a dangerous drug, for which he was sent to a rehabilitation centre in 2007; and one for transferring an identity card to another person, for which he was given a 3-week sentence suspended for 18 months in 2018. In other words, the present offence was committed during the suspension period. D2 was a casual decoration worker, earning a daily wage of $900 at the time of the arrest.
D2’s counsel, Ms Cindy Lee, in mitigation gave the Court more information about D2. D2 was born in Mainland China and has suffered from asthma since young. D2 and his wife had gone through a marriage with both parties signing the marriage certificate in 2018. However, they had not lived together pending a formal wedding banquet to be held in 2019. Since D2’s detention, he learned that his wife had acquainted another man and would apply for divorce when D2 comes out of gaol.
D2’s father suffered from long-term illness and had been diagnosed with stomach cancer about a year ago. D2 completed his secondary school education when he was 21. He worked as a property salesperson for six months and then as a driver for three years. He then worked as decoration worker for two years, earning around $20,000 per month.
While D2 had a similar conviction before, Ms Lee stressed that D2 was 16 at the time. Ms Lee then informed this Court the circumstances of how D2 came to commit the present offence.
In a nutshell, D2 was asked by a casual acquaintance in early 2018 if he would want to engage in dangerous drug trafficking since D2 was in need of money for his future wedding expenses. D2 did not agree right away, saying he would consider the proposal. When the acquaintance raised the question of dangerous drug trafficking again in February 2019, suggesting D2 to rent a premises to store the dangerous drug and telling D2 that he would be given $5,000 each time he made a delivery of dangerous drug, D2 agreed to consider the matter.
In March 2019, another male made payment for renting of a premises and D2 was instructed to collect the backpack and bring it back to the premises to wait for instructions. D2 was then instructed to bring the dangerous drug downstairs, being told by the acquaintance that this other person would act as a lookout. When D2 got downstairs, he was arrested by the police and D2 immediately admitted his role as a courier of ‘coke’ for money.
Ms Lee urged this Court not to activate the suspended sentence and not to enhance the sentence because of D2’s previous conviction of trafficking in a dangerous drug.
D2’s parents have written to this Court, detailing D2’s sad background and the reason why he had committed the offence. They also mention that D2’s father is suffering from stomach cancer and they hope D2 would be released during their lifetime. From a reference letter submitted to this Court, D2’s father also suffers from schizophrenia.
D2 wrote to me himself, explaining why he had committed the offence. He mentioned he had suicidal idea when he learnt that his wife was together with another man but he has since become a Christian and he no longer has such idea. He is remorseful and is determined to study again so that he can work and support his parents when he is released.
A letter from a Pastor Lam informed this Court that D2 was willing to face up to his mistakes and his remorse was shown by his act in the prison. Pastor Lam asked for leniency on D2’s behalf.
Consideration and reasons for sentence
For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million.
In the case of HKSAR v Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of cocaine. The cocaine involved here are 11,128 grammes, 4,410 grammes and 3,884 grammes respectively for the three counts.
D1 pleaded guilty to two counts of trafficking in a dangerous drug. In the circumstances of the present case, when both offences were committed on the same day and the facts were closely linked, in that the dangerous drug in Count 1 was obviously connected with the dangerous drug in Count 2, the proper approach is to have regard to the total amount of dangerous drug in both counts to arrive at an overall starting point. And there are authorities for this in the HKSAR v Chow Yu Chi, HKSAR v Cheung Kwok Leung and HKSAR v Wong To.
D1 trafficked a total of 15,538 grammes which falls into the category of over 15,000 grammes. The starting point is to be under the court’s discretion, bearing in mind that a quantity of 4,000 grammes to 15,000 grammes, the sentence is between 26 to 30 years.
Having considered the circumstances of the offences, I am of the view that a starting point of 30 years is appropriate in the case of D1. D1 pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. So with this discount, the sentence is one of 20 years.
While I appreciate the reason why D1 had committed these offences, and that he has since lost both his girlfriend and the child, they do not amount to humanitarian grounds for me to reduce the sentence. There are no other grounds to further reduce the sentence.
D2 trafficked 3,884 grammes which falls into the category of 1,200 to 4,000 grammes, with a starting point of 23 to 26 years. Having considered the circumstances of the offence, I am of the view that a starting point of 26 years is appropriate. I will not enhance the starting point because of D2’s previous conviction. D2 pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. With this discount, the sentence is one of 17 years and 4 months. Although the defendant D2 is in breach of a suspended sentence, bearing in mind he is going to serve a long sentence of over 17 years, I will not order the activation of the 3 weeks’ sentence.
In D2’s case, again while I appreciate the reason why he had committed such a serious offence and the hardship his incarceration no doubt would be caused to his aged parents, they do not amount to humanitarian grounds for me to further reduce the sentence.
So these are the actual sentence: 1st count for D1, 20 years’ imprisonment; 2nd count, 20 years’ imprisonment; both sentences to run concurrently, making a total of 20 years; 3rd count for D2, 17 years and 4 months.