HKSAR v. CHAN CHUN KIT

HCCC 174/2024

[2025] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2024

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: On 27 May 2024, the defendant pleaded guilty before a Magistrate to two charges of trafficking in a dangerous drug and one charge of conspiracy to traffic in a dangerous drug. Charge 1 relates to the unlawful trafficking of 5,880 grammes of herbal cannabis on 14 October 2022 on the 5^th floor of an Industrial and Warehouse Building in Kwai Chung. Charge 2 relates to the unlawful trafficking of 268,223 grammes of herbal cannabis on the same day in a unit on the 5^th Floor of the same building. Charge 3 alleges that between an unknown date in August 2022 and the 14^th day of October 2022, he conspired together with Jackie, Ah Lok and other unknown persons to unlawfully traffic in herbal cannabis.

According to the amended Summary of Facts to which he agreed before me today, on the afternoon of 14 October 2022, at around 3:30 pm, the defendant was seen by police officers entering the said Industrial and Warehouse Building in Kwai Chung. He was seen leaving the building 20 minutes later with six paper bags in his hand.

Upon interception by the police, he immediately threw the bags onto the floor and struggled before being subdued by the police. Upon search, the six paper bags were found to contain the cannabis particularised in Charge 1 in vacuumed packing.

Upon arrest and caution for the offence of trafficking in a dangerous drug, he stated under caution that the six packs of cannabis were to be delivered to clients. The cannabis was taken from unit A20 to A21 on the 5^th Floor of the building and the access key to that unit was kept in his wallet.

Later on the same day, police gained access to the unit together with the defendant by using the key. He voluntarily provided the password to the padlock at the gate of the unit.

Inside the unit, the police found a total of 391 vacuumed packets containing all the herbal cannabis particularised in Charge 2, 56 boxes of wood planks with hollow interiors as well as packaging paraphernalia including vacuum sealing machine, electric scale, air purifying machine, paper bags, unused plastic bags, cutter and marker. Also there were some bookkeeping notes of drug trafficking in the premises.

The DNA of the defendant was found on a cigarette butt, and his fingerprint was also found on the electronic scale in the premises.

The market value of the total drug seized in respect of Charges 1 and 2, that is 274,103 grammes of herbal cannabis, is estimated to be $45,501,098 at the time of seizure.

Later, upon further arrest and caution at the unit, the defendant stated that he was promised a reward of $100,000-odd by a person called Jackie to extract the cannabis from the wood planks in the premises and deliver them to others.

Subsequently, in a video-recorded interview, the defendant stated under caution that Jackie was a Punti female. On a day in August 2022, he acquainted Jackie in Kwai Chung. At that time he was bankrupt and indebted for $300,000 out of gambling, and Jackie asked him to earn quick money by trafficking cannabis. He agreed.

On 1 October 2022, Jackie asked him to find somebody to rent a place for storing the cannabis. He did not do so because he had an accident and he was hospitalised for his injuries in early October.

Between 6 to 13 October 2022, on the instruction of Jackie and also a friend called Ah Lok, he went up to the unit which the police visited on 14 October 2022. Sometimes he went there together with Ah Lok, sometimes together with another unknown male. After he went to the premises, he did engage in the extracting of herbal cannabis from the wood planks stored there.

He also assisted in the collection of the newly-arrived wood planks which contain herbal cannabis and conveyed them to that unit. He also assisted in making sample packets of the herbal cannabis and delivered the sample packets to others, as well as assisting in the delivery of the herbal cannabis to different customers on the instruction of Jackie and/or Ah Lok.

He stated under caution that before his arrest, that is around 8 to 13 October 2022, he had delivered a total of about 10 to 20 packs of cannabis of 500 or 1,000 grammes each from the unit to different customers. He was promised a reward of HK$700 per delivery of 1 kilogramme of cannabis. However, he never received any reward from Jackie.

On 14 October, he was instructed by Jackie to go to the unit to take 11 packs of cannabis to a client. He ended up taking six packs only to facilitate the delivery, and he was arrested and intercepted by police in the course of the intended delivery.

Police inquiry revealed that according to the property agent, a female and a male went to the agent’s office to rent the unit on 6 October 2022 and the rental was paid by the female in cash. No one actually turned up at the agent’s office to sign up the tenancy agreement.

Investigation revealed that the CCTV of the unit recorded the defendant’s repeated deliveries of unknown packages to and from the unit between 6 and 14 October 2022 together with two unknown males.

The defendant also voluntarily surrendered his mobile phone and password to the police for investigation. According to the content of his mobile phone, he received instructions from Jackie about the type, amount and packaging size of cannabis which he had to prepare and deliver each day.

The instructions also indicated that between 8 and 13 October, Jackie had instructed the defendant to pack and deliver a total of 30,174 grammes of cannabis to different customers at different addresses. On 14 October 2022, she instructed the defendant to deliver 11 packs of cannabis of 1,000 grammes each to different customers.

The defendant now accepts and admits that at all material times, he knowingly dealt in or with and possessed the cannabis in herbal form, which are particularised in Counts 1 and 2, for the purpose of unlawful trafficking. He also accepts and admits that from a day in August 2022 to 14 October 2022, he conspired together with others including Jackie and Ah Lok to traffic in herbal cannabis that is the subject matter of the 3^rd count.

The defendant is now 27 years of age. At the time of the offence he was 25 years old. He is single. He has criminal conviction for two sexual offences and he has no previous drug conviction. However, he was arrested in respect of those sexual offences on 4 June 2022 and was charged on 6 June 2022. Since then he was released on court bail for those sexual offences. So all the present offences were committed whilst he was released on court bail for the sexual matters and his counsel conceded that was an aggravating feature as far as his sentence is concerned in the present case.

He has received education up to Form 5 standard and before his arrest he worked as a technician for the Town Gas. The defendant and his family members had also written letters to this court to ask for leniency. Counsel, Mr Gordon Wong, in his mitigation pointed out that the defendant had a very supportive family. I am grateful to Mr Wong for the analysis of the authorities before the case of HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 in January 2023 for this court’s reference.

In mitigation, counsel urged this court to take into account the fact that he pleaded guilty at an early stage and he is fully entitled to the one-third discount. Counsel rightly conceded that the offences were committed whilst on bail and that is an aggravating factor that may entitle this court to enhance the sentence. Counsel also rightly conceded that his role was more than a courier or storekeeper as one can see from the amended Summary of Facts.

Counsel urged this court to take into account the fact that the conspiracy charge in Count 3 encompasses the two charges of trafficking in every aspect including time, location, perpetrators as well as the nature and quantity of narcotics. He urged this court to take into account of this matter and impose a wholly concurrent sentence for Charge 3 that is totally concurrent to Charges 1 and 2.

Counsel also indicated in his written submission that he had given one non-prejudicial statement to the police. However, counsel agreed that it was unclear whether the information was of any practical use to the law enforcement agency, and counsel did not urge for any further reduction of sentence for that matter.

In sentencing the defendant, I bear in mind the approach as stated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. In respect of the quantity of herbal cannabis in Charges 1 and 2, I have indicated to counsel that I would adopt a global view of the matter given the proximity of location and time factor. I will treat all the cannabis in the two charges as one single transaction and impose a sentence for both counts, and then impose the same sentence for each of Count 1 and Count 2. I think that would be a more fair and balanced way to treat this matter.

The quantity of herbal cannabis involved in both Charges 1 and 2 is 274,103 grammes of herbal cannabis, that is about 274 kilogrammes of herbal cannabis. Having taken into account the circumstances and the facts of the case, I consider that the appropriate starting point should be 14½ years’ imprisonment.

As counsel rightly conceded, the role of the defendant was more than that of a courier. He assisted in the extracting of the herbal cannabis from the wood planks. He assisted in the collection of the newly-arrived wood planks containing the drug to the unit. He was actively engaged in the packaging and also the delivery of the drug to different customers. Bearing in mind his role, I consider that the starting point should be adjusted upward by 6 months to 15 years.

As the offences of Charge 1 and Charge 2 were committed while he was released on court bail for the sexual offences in another matter, that is an aggravating feature that I am entitled to take into account. For that matter, I will further enhance the starting point by 1 year to that of 16 years.

The defendant pleaded guilty at the committal stage and, for that matter, he is entitled to a full one-third discount. So for both Charges 1 and 2, after the reduction of one-third, he is sentenced to 10 years and 8 months’ imprisonment.

Coming back to the individual charges. So I will impose the same sentence for Charge 1, 10 years and 8 months, and also the same sentence for Charge 2, 10 years and 8 months. I order the sentence in Charge 2 to be served wholly concurrent to that of Charge 1. So the sentence for both charges is also 10 years and 8 months’ imprisonment.

In respect of Charge 3, it involves a conspiracy between August and the middle of October 2022, that is, it lasted for about two and a half months between the defendant, Jackie, Ah Lok and at least one other unknown male. The total quantity of herbal cannabis involved, according to the Summary of Facts, should be around 304,277 grammes of herbal cannabis, that is around 304 kilogrammes of herbal cannabis.

Of course, in that 304 kilogrammes, I do bear in mind about 274 kilogrammes were encompassed in Charges 1 and 2 already. Within the period of the conspiracy, he was actively engaged in the extracting of the drug from the wood planks, and the packaging and delivery of the drug to customers in the period between 6 October to 14 October, that is, a period of about nine days.

Bearing in mind the period of the conspiracy, the number of persons involved, the quantity of herbal cannabis involved, and the scale of the operation, I consider that the appropriate starting point for Charge 3 should be one of 16 years’ imprisonment.

And that starting point has to be adjusted upwards because of the role played by the defendant, that is, he was more than a courier. He was also actively engaged in the other drug-related activities at the unit and assisted in the collection of the wooden planks and delivery etc. For that reason, I enhanced the starting point for half a year to that of 16½ years’ imprisonment.

As the offence of Charge 3 was also committed while he was on bail, an additional year will be added to the starting point, making it 17½ years’ imprisonment. So the total starting point for Charge 3 after the enhancement for his role and the aggravating future of the offence being committed while on bail is 17½ years.

He is entitled to the full one-third discount for his early plea of guilty. So, for the 3^rd charge I will sentence him to 11 years and 8 months’ imprisonment.

Bearing in mind that the bulk of the cannabis in Charge 3 has already been encompassed in Charges 1 and 2, and the activity on 14 October was also encompassed in Charges 1 and 2, as well as the principle of totality, I consider that it would be fair and appropriate to order 4 months in Charge 3 to be served consecutively to the sentences in Charges 1 and 2.

So the total sentence in respect of all three charges would be one of 11 years’ imprisonment, and 11 years is the sentence I impose for all the three charges.

So just to repeat, in respect of Charge 1, the sentence is 10 years and 8 months’ imprisonment. For Charge 2, 10 years and 8 months’ imprisonment, to be served totally concurrent to Charge 1. For Charge 3, 11 years 8 months’ imprisonment, 4 months of which to be served consecutively to the total sentence in Charges 1 and 2. So the ultimate sentence is 11 years’ imprisonment.

(Discussion re sentence)

To reiterate, for each of Charges 1 and 2, the sentence is 10 years and 8 months’ imprisonment for the reasons I gave earlier today. For Charge 3, the sentence is 11 years and 8 months’ imprisonment, also for the same reasons that I stated earlier. I order all the sentences in 1, 2, and 3 to be served totally concurrent to each other.

So the ultimate sentence is 11 years and 8 months’ imprisonment.