COURT: The defendant has pleaded guilty in the Magistrate’s Court to one count of trafficking in a dangerous drug, trafficking in 145.421 kilos or kilogrammes of cannabis in herbal form on 17 February 2021 at a storage unit in an industrial building in Hung Hom, Kowloon. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
Summary of Facts
On 17 February 2021, the police targeted a storage unit in an industrial building in Hung Hom during an anti-narcotics operation. They arrested the defendant just outside the storage unit after they witnessed him moving some boxes and handling some packages.
The storage unit was searched and they found outside the unit, seven unopened carton boxes, two opened boxes and 10 packages. Inside the unit they found one opened box containing 10 packages and 20 unopened carton boxes. One of the packages was cut open and herbal cannabis was found inside. There was a total of 29 boxes of which 27 were unopened.
They all contained Kellogg’s cereal boxes which in turn contained vacuumed sealed tinfoil packages of herbal cannabis. The defendant himself was found in possession of two mobile phones, some cash, an Octopus card, a key card of the storage unit and a key card of a hotel room at the Marco Polo Hongkong Hotel. Keys to the unit itself were in the padlock hanging on the door.
Under caution the defendant admitted that he was repacking the goods for somebody he owed $800,000. He agreed to work for this person, Ah Chi, and for this job at the storage unit he was to be paid $2,000. Under caution he admitted he owed a debt to an American-Chinese man in the United States and to repay him, he had to do some jobs in Hong Kong.
He elaborated in interviews and said he arrived from China on 4 January 2021 whereupon his passport was taken by a friend of Ah Chi called Brother. He was given mobile phones, cash and arranged to live in a guest house in Jordan. He was not living in the Marco Polo Hongkong Hotel and only had a key card on him because Brother gave it to him to show any police officer that stopped and searched him.
On the day of his arrest, Brother telephoned him and asked him to go to that specific storage unit and unpack five carton boxes of cereal boxes. He was intercepted by the police and arrested after he had only opened two carton boxes. The defendant admitted that he was knowingly in possession of the drugs in the boxes for the purposes of trafficking when he was arrested. He agrees that the estimated street value of the cannabis was $28,502,516.
Mitigation
The defendant is Chinese, not a Hong Kong resident. He was brought up and educated in both the United Kingdom and the United States. He is an American passport holder. He is now 46 years old and married with two young children. He does not have a criminal record in Hong Kong.
I have received a letter today expressing his remorse for disappointing his parents and family; causing them to suffer.
Prior to this offence, he was trading in red wine; distributing American wine in mainland China. He also bought and sold luxury goods from Hong Kong to friends or mainland clients.
During COVID, his business did not do well and he got himself into financial difficulty. This led to the debt to Ah Chi which meant he was forced to come to Hong Kong to stay in Hong Kong and repay him in the manner that led to him being arrested for trafficking a large amount of cannabis.
Ms Wong, SC, has said all she can say on his behalf in mitigation. She rightfully stresses his timely plea entitles him to a full one-third discount. She refers to several authorities and cases to assist me in sentencing.
Sentencing
Prior to new guidelines for trafficking herbal cannabis recently revised by the Court of Appeal in January 2023, the relevant authorities to consider were the Attorney General v Tuen Shui Ming and Another [1995] 2 HKC 798 as well as R v Chong Chak On [1996] 1 HKC 152.
The new guidelines in HKSAR v Nguyen Thang Loi and Another, CACC 145 and 217/2019, they were two appeals heard together. These new guidelines are not applicable to the present case because the defendant committed this offence in February 2021, long before the new guidelines. If the new guidelines did apply to the defendant, he would be facing a starting point of well over 10 years since those guidelines call for a starting point of 10 years or more where there is over 90 kilos of herbal cannabis.
I have considered the approach to sentencing those trafficking in dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority.
In this case, I am satisfied that the defendant’s role was at least equivalent to a courier or a storekeeper. He was packing and unpacking drugs stored in a commercial storage unit when arrested. Therefore, his sentence is to be determined by the relevant sentencing tariffs and the quantity of dangerous drugs involved.
Based on the guidelines that were followed in 2021, there are only guidelines from the Court of Appeal up to where there is over 9,000 grammes of cannabis resin. Where there is 9,000 grammes or 9 kilogrammes and above, the Court of Appeal was of the opinion that a starting point of 4 years and upwards would be appropriate.
Since the prevalent opinion then was that the potency of herbal cannabis was lower in terms of the THC content than that of cannabis resin, depending on the quantity of the herbal cannabis it was open to sentencing courts to adjust the sentence downwards to reflect the fact that the dangerous drugs was herbal cannabis and not resin.
I do note that the Court of Appeal made it clear in R v Chong Chak On at page 164, that a sentence is “governed by the weight of the herbal cannabis”. In that case, where a 20 year sentence for trafficking in over 388 kilogrammes of herbal cannabis was upheld, the court there said that:
“The THC content is relevant only insofar as it allows the court to take a more lenient view of herbal cannabis than it would of an equivalent amount of cannabis resin.”
We now know that that is no longer the case following the most recent view of the Court of Appeal. However, I repeat, the new guidelines do not apply to the defendant here. As I have said, Ms Wong has taken me to several sentencing cases where there is a similar amount of herbal cannabis involved.
I have taken into account the facts of the case, the huge quantity of herbal cannabis here, all mitigation put forward and submissions I have heard today. I find a starting point of 10 years appropriate which I will discount by 3 years and 4 months to reflect the defendant’s guilty plea at the earliest opportunity.
Lastly, I have taken into account the sixth and last step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender; to ensure that it is not a crushing sentence.
Here, in approaching this principle, I have weighed it against the sentence of 6 years and 8 months’ imprisonment, the quantity of drugs and the facts of the case. Standing back, it is a significant term of imprisonment but a harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, the defendant for this offence is sentenced to 6 years and 8 months’ imprisonment.