HKSAR v. CHEUNG MAN-KIT AND OTHERS

HCCC 236/2018 & HCCC 237/2018
(Heard together)
[2020] HKCFI 2355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 236 & 237 OF 2018

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

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COURT: This case concerns a conspiracy to traffic in dangerous drugs and some ancillary charges. There are two sets of charges, HCCC 236 and 237/2018.

In 236/2018, an indictment, a conspiracy to traffic in dangerous drugs is alleged. Cheung Man-kit, Mok Chi-yin, Lau Kwok-yau, Chuk Chiu-wah and So King-yee pleaded not guilty and were tried by a jury. After a trial lasting 30 days, Chuk Chiu-wah and So King-yee were found not guilty by the jury and were acquitted and discharged. Cheung Man-kit, Mok Chi-yin and Lau Kwok-yau were found guilty by the jury and were convicted. Cheung, Mok and Lau must now be sentenced for their part in the conspiracy, the subject of the indictment.

In addition, Lam Kwok-shing was originally committed for trial on this indictment. Shortly after the order for committal, his lawyers wrote to the court indicating a desire on his part to change his plea to guilty. On 24 May 2019, Lam was arraigned and pleaded guilty and admitted a summary of facts.

In 237/2018, Fong Chi-wai, Choi Suet-pai, Kwan On-tik, Andy pleaded guilty to the conspiracy to traffic in dangerous drugs. The conspiracy to traffic is in substance identical to that in 236/2018. In addition, Mok Chi-yin (one of the accused in 236/2018) pleaded guilty to a charge of possession of dangerous drugs. They were committed for sentence to the Court of First Instance. There was another person committed for sentence, one Chan Bing-yiu. He is now dead and the only matter which now requires attention is to mark the file so far as he is concerned with the appropriate endorsement reflecting that fact.

Over the procedural history of the case, various of the accused have borne the numbering system which results in them being described as D1, D2, D3, etc. Keeping track of each accused by this numbering system is not altogether easy and not productive of understanding without elaborate explanation. The only sensible way, and the way I have adopted in this case, is to refer to them by their names.

In a case of this complexity, it must be said that I have derived great help from counsel representing the prosecution and each of the accused. I am truly grateful.

Sentencing principles - conspiracy to traffic in dangerous drugs

For many years, the community of Hong Kong has regarded the trafficking in dangerous drugs as a very serious offence. The maximum penalty for this offence on indictment is imprisonment for life and a fine of $5 million. The serious view taken by the community is reflected in the sentences imposed by the courts of Hong Kong for offences of trafficking. Guidelines have been handed down by Hong Kong courts for trafficking offences and sentences are generally calculated on the basis of a sentencing band relative to the narcotic content of the drug in question.

The harm that heroin does is, in many ways, writ large in this case. It is highly addictive and ridding oneself of the addiction is a long and arduous process. It is not always successful. It affects family relationships in a multitude of ways. All of them adverse. Addiction to heroin does not limit itself to harm to the individual and to his or her family. The community is called on to allocate resources to users of heroin, including medical and health services necessary to deal with the consequences of addiction.

The source of guidelines in relation to the trafficking of heroin starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370.

The correctness of the guidelines in relation to trafficking in heroin was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. Indeed, in Abdallah, the Court of Appeal considered the position for trafficking in amounts greater than 600 grammes of heroin. The conclusion of the court was to set guidelines for amounts exceeding 600 grammes up to 15 kilogrammes.

In HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [2018] 5 HKLRD 88, [2018] 6 HKC 35, the Court of Appeal made the point that the sentencing guidelines articulated in Lau Tak Ming and Abdallah were upon the basis of the person to be sentenced was of the nature of a courier or storekeeper. The court held that:

“It was appropriate to identify the role of the person to be sentenced in determining the appropriate sentence. And it followed from that, it was open in an appropriate case to deal with the sentencing of a person with a different role to that of storekeeper or courier, in a different manner to the sentences indicated in Lau Tak Ming and Abdallah. On that premise, it would be very tempting to sentence upon the basis that an actual seller and the organiser of actual sellers and, for that matter, the look-out who assists sellers knowing that heroin is being sold, should be viewed in a more serious and severe light than a courier or a storeman.”

However, while that is the logical consequence of the decision in Kilima, sentencing for actual traffickers involved in the selling of, amongst other drugs, heroin, has hitherto followed the Lau Tak Ming or Abdallah guidelines, and I do not propose to depart from that approach.

It is not always possible to identify with precision the quantity of narcotic involved in any particular case. That can be true in cases of trafficking in dangerous drugs. It is often a more acute problem where a charge is an inchoate offence such as attempting to traffic or conspiracy to traffic. In HKSAR v Chan Kam Loi [2014] HKCA 47, CACC 410/2012, the Court of Appeal (Macrae JA, Barnes and McWalters JJ) faced essentially the same problem as appears in the instant case. Essentially the court held that the primary function of the court is to assess, in accordance with the laws of evidence and procedure, the gravity of the offence and sentence accordingly. McWalters J (giving the judgment of the court) observed:

“100. Before any court can sentence an offender it has to make an assessment of the gravity of the offence he has committed. In drug trafficking offences the starting point for that to be done is by recourse to the quantity of drugs being trafficked. In most cases, certainly in respect of substantive offences, that will not create any problem simply because the charge will reflect the quantity of drugs that has been seized by the law enforcement agency. But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101. Thus, even in respect of inchoate offences, the natural course is for the court to analyse the evidence to see whether it allows the court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enabled the court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the court to impose a just sentence.”

In HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, the Court of Appeal followed these observations and held that:

“Where a conspiracy to traffic in an unspecified quantity of dangerous drugs was concerned, the sentencing 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. Unless clear-cut such inferences and assumptions would inevitably lean in favour of the defence.”

Implicit in the foregoing decisions is the proposition that the gravity of the conspiracy to traffic may vary as between accused. In sentencing each of the accused, I have had to approach the position of those accused on an individualised basis. That said, as will shortly appear, there are a number of accused in essentially the same position. The accused are to be sentenced for a conspiracy to traffic and not trafficking. The sentence must be based on the agreement between the conspirators and the execution of that agreement. The amount actually trafficked in the execution of the agreement is a very important measure of the seriousness of the conduct, but it is not the only measure.

Factual basis for sentence - HCCC236/2018

Principles

The factual basis for sentence in relation to those convicted after trial on HCCC236/2018 fall to be sentenced upon the facts which I am sure were proved against the accused in the trial. The law requires that the facts upon which I sentence properly reflect the verdict of the jury.

Facts - Overall considerations

The case for the prosecution in 236/2018 was that Cheung Man-kit, Mok Chi-yin and Lau Kwon-yau, joined in a conspiracy with a number of others. Two of those were acquitted. The others alleged to be in the conspiracy were Fong Chi-wai, Kwan On-tik, Andy, Choi Suet-pai, Chan Bing-yiu and Lam Kwok-shing. In essence, the case for the prosecution was the conspiracy to sell heroin hydrochloride on a retail basis in an alley off Portland Street in Mong Kok. The case for the prosecution was that the conspiracy occurred between a day on or about 24 October 2016 and 25 November 2016, both dates inclusive. The evidence in the trial demonstrated that the conspiracy commenced well before 24 October 2016, however 24 October 2016 was the date on which the Narcotics Bureau commenced undercover and surveillance activities in relation to the conspiracy. 25 November was the date on which the police operation turned overt, which brought the conspiracy to an end.

While I am sure that the conspiracy operated before 25 October 2016, I am not sure whether any of the accused who were convicted after trial were necessarily involved prior to that day or had joined prior to 25 October 2016, or at what stage they did so. In any event, it would be inappropriate to sentence any of the accused who were convicted after trial in respect of conduct prior to the 24th.

The facts proved at trial are that the accused joined in a highly organised conspiracy to traffic in heroin on a retail basis. Part of the evidence of the conspiracy came from two undercover officers. One, DPC54515, Ngan Kwun-chi was involved in purchasing small pellets of heroin wrapped in dark plastic. Each of the pellets that he purchased weighed between 0.15 grammes and 0.19 grammes. He did so on many (but not all) days between 24 October 2016 and 25 November 2016. The second undercover officer observed the conduct of various of the parties. He was present in the vicinity on a greater number of days and on a greater number of occasions, when compared to the officer who did the purchases. It is pertinent to note that the second officer, the observing officer, noted substantial numbers of persons entering the alley of Portland Street. He noted that the persons who entered the alley appeared to be drug addicts and appeared to be entering the alley and leaving in quick succession. His observations provide an evidential basis for me being sure that many, many customers entered that alley to purchase heroin from those selling heroin in pursuance of the conspiracy.

The conspiracy was organised into shifts. Given the range of times during the day or night that the purchasing undercover officer acquired drugs in the alley, the only reasonable inference is that the operation was a 24-hour operation. The operation needed organisers, it needed supplies and staff and packaging and it needed a means of disposing of the cash generated by the operation. In some respects, the operation which was the product of the conspiracy was partly analogous to any retail operation. Plainly, given the illicit aspect of supply and retail sales, the need for an appropriate mode of disposing of substantial amount of cash, the analogy with a legitimate retail operation has its limits. However, I make this point to reflect the highly organised aspect of the conspiracy.

Of course, not only did various accused have different roles in the execution of the conspiracy, but they must, I am sure, have had different levels of knowledge as to the nature and extent of the conspiracy. However, even those who executed the conspiracy at a retail level must have known that this was an organised operation.

Mok Chi-yin, for example, admitted that he was employed on the 7 pm to 7 am shift and sold about 80 to 100 pellets each night. He admitted that the proceeds of the sales made by him were given to an unknown person at about 7 am. His reward for selling each pellet was $10. On that premise, he alone was selling about 15 grammes of heroin and making for himself about $1,000 on each shift. The pellets were sold at $170 a pellet which means the gross proceeds of sale for him were $17,000, or as much as $17,000 per shift. Clearly, on that premise, $16,000 of that went into the hands of the organisers. I mention this at this stage to give an idea of the scope of the conspiracy viewed from the perspective of the retail seller.

The other accused who was convicted after trial who admitted to being a lookout was Lau Kwok-yau. He worked between 8 am and 8 pm each day and admitted receiving a salary. He told the police there were three shifts a day. On occasion, he was seen handling what appeared to be substantial amounts of cash.

The observing undercover officer noted a number of movements of substantial amounts of cash which were taken the Jockey Club outlet in Argyle Street in Mong Kok.

There was evidence of money being deposited in the Jockey Club Betting Centre in Argyle Street. These were observed by one or other of the undercover officers. Three of the visits to the Jockey Club where a total of cash of $24,000 on 10 November, $32,000 on 11 November and $24,000 on 14 November involved marked money, was found on each occasion. It was clear that these deposits represented part of the proceeds of the sale of heroin in the alley. I am sure that not only were these deposits the proceeds of such sale, but there must have been many, many more. That is supported by, amongst other evidence, the WhatsApp communications which involved persons not at the trial. That group were known throughout the trial as the “Honda Racing Group”. However, it is impossible to quantify how much was taken on a daily or per shift basis, the one thing that can be said with absolute certainty is, on the three occasions at which money was directly observed by the police going to the Jockey Club was a small proportion of the takings.

The WhatsApp communications also confirmed there were multiple shifts per day and that, in effect, the retail outlet in the alley of Portland Street was operating on a 24 hour per day basis.

The evidence does not enable me to say with any real certainty specifically how much heroin was sold during the currency of the conspiracy as averred on the indictment. That could not be quantified by the reference of customers for the reasons I have outlined. Certainly, a substantial quantity of heroin was found in the possession of one of the conspirators shortly after the operation turned overt. Further, when the operation turned overt a substantial quantity of pellets was found in a room which I am sure was the packaging point for the operation. But neither that quantity nor the quantity of pellets wrapped tells me about whether that was a supply for a shift, a day or more than a day. The WhatsApp communications do not help as far as that is concerned. As the overall quantity of heroin sold pursuant to this agreement over the period averred in the indictment, I am nevertheless sure that the cash turnover must have been at the absolute minimum $500,000. It was probably very much more.

Shop floor vendors were selling pellets weighing somewhere between 0.15 grammes and 0.19 grammes for $170 per pellet.

It is against that background that each of the accused who were convicted, fall to be sentenced.

Cheung Man-kit

Facts found

Cheung Man-kit was present every day when the conspiracy subsisted. His role in the conspiracy was, I am sure, multi-faceted. He combined the role of lookout and guide or urges in the sense that with one exception where he sold a pellet of heroin, he stayed largely outside the alley for the most part keeping a lookout, but would from time-to-time point potential customers in the right direction. I am sure this is reflective of his role in the conspiracy and that he was not, for the most part, concerned in the direct selling of heroin.

His other vitally important role was in handling the money which, as I have already indicated, I am sure was the proceeds of the crime. On multiple occasions, he would be seen outside the alley counting what the observing officer described as large amounts of cash. Nobody could say how much cash was counted because the observing officer was anxious not to be recognised. Mr Cheung was usually found at a desk which must, at one time, have been for a calligrapher to ply his trade. The desk on Portland Street, was just outside the alley. It was also true that Mr Cheung was not greatly concerned with the actual physical delivery of the cash, which is the proceeds of the sales to the Jockey Club. He gave that money to another person to carry to the Jockey Club. As I have mentioned, on two occasions, he sent messages to the WhatsApp group which was known throughout the trial as the “Honda Racing Group”. That concerned, I am sure, quantities of sales and takings and the arrangement for the disposition of the takings. One of the features of the activities of Mr Cheung was his almost constant use of his phone. He was, with one exception, not there to dirty his hands with the sale of heroin. There is no evidence as to what these phone calls were about. However, the records reveal that on any view, Mr Cheung was a prolific caller, particularly to Mok, Lau, Fong, Kwan and Choi. He was the focus of calls from other members of the conspiracy. He was the vital link between those on the shop floor selling heroin pellets and the organisers of the conspiracy. I am sure that if the activities of Mr Cheung are viewed as a whole, the only conclusion is that he was in the nature of a middle manager - in essence the shop floor manager.

Mitigation

The background of Mr Cheung Man-kit is that he is 38 years old now, but 35 at the time of the offence, which is the subject of the indictment. He married in 2005 and divorced in 2013. He has a 10 year old son and a 13 year old daughter. Since he graduated from secondary school in 1997, he has been unable to find stable work. For the most part, he worked as a transportation worker. At the time of the offence, Mr Cheung characterised himself as an “odd-job man”. He seemed to have an illegal street parking franchise on Portland Street. He claimed to be a car cleaner and a money lender. He worked from time-to-time for a real estate agency which was at the entrance of the alley. His principal task for the real estate agency was to take possession of premises that had been occupied by non-paying tenants.

He has a criminal record including previous convictions for possession of dangerous drugs. That record has a conviction in 2010 for trafficking in dangerous drugs when he was sentenced to 16 months’ imprisonment by a magistrate. The balance of his record is traffic-related petty crime. Counsel for Mr Cheung told me that he was under financial stress prior to his arrest experiencing difficulty in meeting his obligations for maintenance for his wife and children, paying rent to his sister for the residential premises and 5,000 a month for a drug habit. Counsel for Mr Cheung contends that this is what led him to participate in the conspiracy. He admits he was responsible for selling drugs and depositing the proceeds into the Jockey Club for Fong Chi-wai.

Counsel for Mr Cheung contends that Mr Cheung was “neither a mastermind nor a financier in the conspiracy”. Counsel points out he was not a participant in the Honda Racing Group and took no part in orchestrating, planning and supervising the operation of the drug trafficking and took no part in the management of staff or stocks of drugs for selling. Finally, counsel for Mr Cheung contends that Mr Cheung was never told about the scale of the operation of the drug business. I am less than convinced about this last assertion because when he testified at trial, while I was sure that the jury were left in no doubt he was not telling the truth about critical matters, a conclusion in which I wholeheartedly join, he struck me as a man of intelligence, and, to the extent there is a distinction between a man of intelligence, also a street-wise person. Some of what he said could not possibly have been true and there were times during his testimony that I sat there in amazement at the shameless lies that he told. Nevertheless, I was firmly of the view that despite the at least partially dishonest content of his testimony, he was, as I say, a person of real intelligence. The idea that he could have failed to appreciate that this was a big operation is utterly untenable. He handled the money, he could not have failed to appreciate, even from that, this was a sizeable operation. Whether he knew the exact details of issues of supply, financial management, staffing, is open to question. So, whether for example he knew at the time that the matter went overt, that one of the major organisers would have a substantial quantity of heroin in his car, or that another organiser was closely connected with the drugs in a nearby premises which were there for storage and packing. I am prepared to accept that he did not know that, but that misses the point. This was a conspiracy lasting for a substantial period and he could not have failed to appreciate that a substantial quantity of heroin was being sold by retail in the back alley of Portland Street.

Mok Chi-yin

Facts found

Mok Chi-yin was the 2nd accused on the indictment which went to trial. There was evidence from the undercover officer who purchased heroin pellets in the alley from, amongst other sellers, Mok Chi-yin. In addition, he was interviewed under caution and made a series of admissions in a series of written records of interview. In those, he admitted he was employed by a person who he did not know to sell heroin between 7 pm and 7 am. At 7 pm, he would be given the pellets of heroin to sell and he would receive a reward of $10 per pellet sold. He estimated he sold between 80 and 100 pellets per shift. On the premise he sold 80 pellets per shift, the period which he worked might be, on a conservative basis, be of the order of 20 days which is approximately half the period covered by the indictment. It cannot be said with certainty that he worked each and every day but what is clear, based on the times that the undercover drug purchasers saw him, together with the other undercover officer, he was present for a substantial portion of the days during the operative period of the conspiracy. On that premise, using the assumption that each of the pellets had approximately the same quantity of heroin, I employ a median of 0.16 grammes. On that premise and working on the assumption he worked for 20 days, he was responsible for the sale of something of the order of 256 grammes of heroin.

On no account could it be said that he was in any way involved in the management of the operation. He received his pellets for sale, sold them, accounted for the proceeds which were the proceeds of the sale. By convicting him, the jury must have rejected his assertion that he was selling in the back alley on his own account. In my judgment, the jury were entirely right to reject this defence.

Mr Mok was simply a seller of heroin and falls to be sentenced on this basis.

He pleaded guilty to the possession of dangerous drugs. This alleges possession on 25 November 2016 at Room 1, 3rd Floor, Hang Fa Hotel of 18 mils of liquid containing traces of methamphetamine. He was committed for sentence to this court in relation to this charge. He now falls to be sentenced for it. The hotel room was the residence (or at least a residence) of Mr Mok at the time of his arrest. The police took him to this room after his arrest in relation to the conspiracy to traffic. In the course of a search undertaken at this room, an ‘Ice’ bottle was discovered and liquid inside that bottle is the subject of this charge. Mr Mok made full admissions to the police in relation to this charge.

Mitigation

He is now 57 years and 11 months old. He was 55 at the time of the offence. He has a poor criminal record and a feature of that is two convictions for trafficking in dangerous drugs in 1991 and 1988. He has many convictions for possession of dangerous drugs. Those are a long, long time ago. He is a drug addict and, I accept as being deeply addicted to drugs for some time. That includes an addiction to heroin and, more recently, to ‘Ice’. The latter explains his possession of the ‘Ice’ bottle containing the 18 mils of liquid containing traces of methamphetamine in the hotel room where the police took him for the search.

In some respects, there is more than a small element of tragedy about Mr Mok’s case. He had a trade. He was a qualified Gondola operator. He lost his right leg above the knee and has a prosthetic leg. Not surprisingly, he walks with a limp. He was married but the break-up of his marriage he attributes, almost certainly to his addiction to dangerous drugs. If ever there was a man who demonstrates the tragic consequences of drug addiction, this has to be the man. When you add to that the tragic accident, it is not surprising he ended up on this indictment doing what the jury entirely rightly concluded he was doing.

Lau Kwok-yau

Facts found

Lau Kwok-yau was convicted after trial on the indictment. Mr Lau had, in essence, two roles. He was a lookout and, in effect, almost the personal assistant of Mr Cheung Man Kit. Mr Lau participated in a video-recorded interview under caution. In that interview, he admitted he was a lookout and that he was undertaking this activity for people who were selling white powder. Mr Lau acted as a lookout at the alleyway near the restaurant. He told the interviewing officer that he received $500 a day for his efforts and worked from 8 o’clock to 4 o’clock. 8 o’clock in the morning to 4 o’clock in the afternoon. And he told the officer that he did this every day. Both the officer who made heroin purchases in the alley and the observing officers saw Mr Lau counting money at various stages during the operative period of the indictment. He was also seen taking money to the Jockey Club and the only reasonable inference is that he was involved in the depositing of money there. It is clear he was involved in this activity on more than one occasion, but I am sure he was doing so at the behest and at the direction of Mr Cheung Man-kit.

There is evidence, which I am sure the jury must have accepted that on one occasion Mr Lau was seen telling a possible customer there was “stuff” in the alley. At no stage was there any suggestion that Mr Lau was the actual seller. There was no evidence whatever Mr Lau actually sold any heroin. It is clear he knew what was going on, but he was, on any view, a person playing a fairly minor role. Indeed, for about one-third of the operative period of the dates on the indictment, Mr Lau was off at a rehabilitation centre and was not involved in the activities of the conspirators at all. I am sure he knew what was going on, but I am sure that his knowledge was confined both mentally and physically to the area immediately connected to the back alley.

Mitigation

Mr Lau is a 70 year old man. He is single, never been married. He lives alone in a tiny flat in Sham Shui Po before his arrest. His education is very poor and he did not get beyond primary school. I am told that other family members have emigrated to places such as Australia and Canada, leaving this old man in Hong Kong. At the time of the operative period of the indictment, Mr Lau was unemployed. He was addicted to drugs and it is noteworthy that although he has a substantial criminal record, the last drug-related offence was 2007. This carries with it the clear implication he was taking drugs on a discreet basis.

Lam Kwok-shing

Facts Found

Lam Kwok-shing was committed for trial in 236/2018. The committal occurred on 6 August 2018.

Following the committal on 29 October 2018, his lawyers wrote and informed the court that Mr Lam now wished to plead guilty. The facts of the case that relate to Mr Lam were agreed as early as 8 November 2018. An indictment was prepared and the matter was listed for plea and sentence on 24 May 2019. On that day, the accused was arraigned and pleaded guilty and a summary of facts was read and admitted. His case was adjourned to abide the outcome of the trial in HCCC236/2018 and he falls to be sentenced today.

Lam Kwok-shing was one of the sellers of heroin in the alley in Portland Street, which is an important location for this conspiracy. He sold pellets of heroin to an undercover officer on 28 October and 13 November. However, Mr Ronny Leung, Barrister-at-Law, counsel for Mr Lam, in his detailed and helpful skeleton argument points out that he accepts his client was present not only on 28 October and 13 November, but also on 31 October and 8, 10, 11 and 14, and (possibly - the basis for the uncertainty will appear shortly) 23 November 2016. This comes from the witness statement of the undercover officer which Mr Leung thoughtfully included in the bundle containing his submissions. However, that self-same statement indicates that while the undercover officer saw Mr Lam as present on those days, he was only seen working on 28 and 31 October and 8 and 13 November 2016. The distinction which was being made was being present and working. On this premise, given the admissions made by counsel for Mr Lam, it appears sensible to accept that his client was selling heroin on a minimum of 4 days during the duration of the conspiracy.

However, counsel for Mr Lam has drawn my attention to the admissions made by Mr Lam in a series of video-recorded interviews that were given to the police. In the first interview, Mr Lam admitted to the police under caution that he sold heroin between late October 2016 and stopped selling heroin on 13 November 2016. This goes considerably further in any event to the admissions dated 8 November 2016 and it would be reasonable to remove 23 November from consideration. I can only sentence on the basis of what is either proved or admitted, and while I strongly suspect that Mr Lam was working on many more days than a mere four, that seems a safe base to work from.

As to the Admitted Facts, Mr Lam accepted that every time he sold $8,000 worth of heroin, he had to hand over the $8,000 and would, as his reward, receive $500. As it turns out from the video-recorded interviews, it was open to sell more than $8,000 worth of heroin. Indeed, in relation to the events on 28 October (his first day of selling heroin for this conspiracy), the reward admitted to be received by Mr Lam was $1,500. See interview 1 December 2016, counter 386. On the premise that a reward of $500 is for selling $8,000 worth of heroin, then Mr Lam must have sold $24,000 worth of product on this particular day. On the assumption that each unit sold for the same amount was that given to the undercover officer - $170 - then Mr Lam sold 141 units on that day. The heroin content of each unit varied, but it was about 0.16 grammes per pellet. On that basis, he sold 22.5 grammes of heroin on that day alone. The balance of his video-recorded interview is less precise about the quantity sold. There is certainly no basis in the admissions that he sold as much as he did on 28 October. Equally, against the quantity of money which was seen moving out of the alley, I am satisfied beyond reasonable doubt that this was the proceeds of heroin sales in the alley on behalf of the conspiracy. I am sure that he sold $8,000 worth of heroin on each of the subsequent days and on the basis of each pellet containing 0.16 grammes per pellet of heroin and costing $170 per pellet, that puts his daily sales at 47 pellets which means a sale of 7.52 grammes of heroin. Accordingly, the sales of heroin admitted or proved by Mr Lam’s activity on behalf of the conspiracy amount to about 37.5 grammes.

Given the movement of money out of the alley and to the Jockey Club, which I will shortly detail together with the quantities of heroin found on the day that the undercover operation turned overt, I am in no doubt whatever that he sold substantially more, but a conservative (and safe) approach is to proceed upon the basis his sales of heroin amount to 37.5 grammes.

The facts admitted by Lam Kwok-shing reveal movement of money between some of the co-conspirators and the Jockey Club Betting Centre in Argyle Street in Mong Kok. On one specific date, that is 8 November, the undercover officer attended the locality where the drugs were being sold and saw Mr Lam counting a bundle of banknotes and handing them to another of the co-conspirators. Depending on which iteration of the indictment or the various charge sheets one reviews that person is described in the Admitted Facts as D2, that could be about any one of three people. In any event, that person was a co-conspirator. Whichever co-conspirator it was, when he received the banknotes bundle from Mr Lam, he told the undercover officer there was nothing for sale and they were doing “stock-taking”. That assertion carries with it the clear implication that the operation was a substantial one. Mr Lam also admitted that the banknotes of substantial quantities were handled in the alley by one or other of the co-conspirators and taken to the Jockey Club. Of particular note was the agreement on 10 November 2016, money was passed from one co-conspirator to another and that amounted to $24,000 and that was taken to the Jockey Club. Amongst that money was two marked banknotes which the undercover officer had used to purchase heroin on that date. 10 November is one of the dates on which Mr Lam was in the alley selling heroin. On 11 November 2016, two co-conspirators passed money between themselves and one of those two deposited $32,000 in the Jockey Club. The deposit of $32,000 included three banknotes used by the undercover officer on 10 and 11 November 2016 to purchase heroin. Mr Lam was a seller on that date.

The final paragraph of the admissions that Lam Kwok-shing made to the magistrates’ court reads as follows:

“Lam Kwok-shing now admits and accepts that at all material times he conspired together with D1 to D8 and D10 in Hong Kong to traffic in a dangerous drug, namely heroin.”

That admission carries with it the clear implication that one of his co-conspirators was D8, who had in his possession just under 3.3 kilogrammes of heroin. In addition, on a daily basis, the conspiracy was moving a substantial amounts of money in cash to the Jockey Club and obtaining cash vouchers for those deposits. I am in no doubt that Lam Kwok-shing was there at the alley selling heroin on days other than where he was detected by the undercover officer. However, there is nothing in the admissions he made under caution which explicitly extends his heroin-selling activities to other days. There is only the admission of his reward and how much heroin (by the clearest of implications) he was selling on those days. Given what I learned of the scope and nature of the conspiracy, particularly from the WhatsApp communications between some of the co-conspirators, substantially more heroin was being moved to addicts from the alley on Portland Street.

Counsel for Mr Lam made the point that he was fully cooperative with the police. He submitted two video-recorded interviews of substance and whilst a slightly pernickety criticism of the police might be that they did not focus their questions to Lam Kwok-shing, so as to tie him down as to amounts actually sold, it is a full and detailed set of admissions.

Lam Kwok-shing has a long criminal record starting in 1992 and ending in 2015 (it is to be remembered that the arrests in this case were in the last quarter of 2016), which spans a wide range of petty crime and substantial number of convictions for the possession of dangerous drugs. Perhaps significantly, there has never been a conviction for trafficking in dangerous drugs.

Mitigation

Lam Kwok-shing was born in March 1978. That makes him about 38 years of age at the time of the offence. According to the antecedents report, he was born in Hong Kong. He completed Form 2 in secondary school and worked as a cook and in transportation work. He has been a drug addict since 1992 and has been taking methadone ever since. He is now 41 years of age. Mr Leung, on behalf of the accused, confirmed the essence of the antecedents statement. He added that Lam has attempted to quit his addiction by joining voluntary drug addiction treatment programs in 2000 and 2015. Counsel told me that a virtue of his current status of being on remand was that he has had some success in ridding himself of this addiction. That is to be applauded. As counsel tells me, turned to Christianity in that regard. The family circumstances of Mr Lam are that his mother left the family home when he was very, very young. Since then he has been raised by his father. He has siblings and his father died some years ago.

Counsel for Lam Kwok-shing pointed to the genuine remorse of his client. I accept that this is true. I accept the submission that the role of Mr Lam was that of what his counsel characterised as a “footsoldier”. He argued, and I accept, that he ought to be treated and sentenced accordingly.

Factual basis for sentence - HCCC237/2008

Principles - Sentence to be limited to facts admitted

In relation to those who have pleaded guilty on committal or on arraignment, the facts admitted by them are limited to between 24 October and 25 November 2016. It is appropriate at this stage to make the point that the evidence at trial in 236/2018 covered aspects of the conduct of those who pleaded guilty which either widened or filled out much more in detail the facts admitted by this group of accused. However, this group of accused will only be sentenced on the facts admitted by them, which were admitted before the magistrate, and they will be sentenced on nothing else. They were not parties to the trial and could not test or challenge the facts adverse to their interests, which came out at the trial.

Facts

Fong Chi-wai

Facts found

Summary of facts admitted by Fong Chi-wai reveals in paragraph 9 that between 24 October 2016 and 25 November 2016, Mr Fong conspired to traffic in heroin with his co-accused on the charge sheet. Summary of facts reveals the evidence of the undercover officer purchasing heroin on a multitude of tasks, occasions. Each purchase was of a pellet for $170. Mr Fong admits that a good deal of money which was the proceed of sales of heroin in the back alley near Portland Street. Some of that cash was passed to Mr Fong on 25 November 2016, shortly before the undercover operation went overt. That cash was passed to him by Kwan On-tik, Andy, who is, of course, another of the co-conspirators in this conspiracy.

Fong Chi-wai was arrested at his residence. $43,000 was found in cash together with a Jockey Club voucher of $32,000. A search of his car revealed 2.94 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride, which is the possession of dangerous drugs charge to which Fong has pleaded guilty. In his interviews to the police, he admitted that the mobile phone in his possession had access to the Honda Racing Group, WhatsApp chat room.

Also relevant to the position of Mr Fong is that shortly before the matter went overt, Choi Suet-pai was intercepted by the police and found in possession of heroin weighing 2.76 kilogrammes. Shortly after that, a search of Mr Choi’s car revealed a further 535 grammes of heroin, together with cash in the amount of $67,500 and the Jockey Club cash voucher for $24,000. That voucher had been purchased shortly before on 24 November 2016.

The WhatsApp messages in which Mr Fong participated through the Honda Racing Group have messages which clearly relate to the management and sales of dangerous drugs. There are references to keeping a lookout, quantity of drugs expressed in kilos, which I am sure must be a reference to drugs sold or supplied. The WhatsApp messages do not reveal sufficient information for me to be sure, to the criminal standard, precisely how much dangerous drugs were the subject of the management between Mr Fong and his fellow WhatsApp Honda Racing Group correspondents. The messages also refer to the replenishment of stock. There are also references on a frequent basis to the receipt of cash and the conversion of that cash into Jockey Club vouchers and the collection of money from either the day shift or the night shift. There are also messages between Mr Fong and Cheung Man-kit which also refer to a day shift and a special shift and referred to cash vouchers in the amount of 24,000 and $32,000 respectively. These messages are less frequent and it is right to point out that Mr Cheung was not a member of the racing group. The overwhelming inference that I draw from the description of these communications in the Admitted Facts is that Mr Fong was closely concerned with aspects of the management of the conspiracy to traffic in dangerous drugs, the subject of the charge which he faces. The prosecution alleges that Fong is the mastermind of the drug operation. I cannot be sure that this is the case. What I am sure of is that he was an important party in the conspiracy and he was in a management role. In comparative terms, by reference to my characterisation of Mr Cheung as a middle manager, I would place Mr Fong well above that.

Mitigation

Mr Fong has a criminal record going back to 2007. There is one conviction for trafficking in dangerous drugs in 2010 for which a magistrate imposed a 16-months sentence. The rest of the offences relate to road traffic matters.

He is a married man, but tragically his wife died in November 2017. It is a tribute to the Commissioner of Correctional Services that they permitted Fong to attend the funeral proceedings for his wife, despite the fact that Mr Fong was then on remand. Mr Fong and his wife had two children, now 6 years old and 4 years old. They are in the care of Mr Fong’s mother. That may be something of a mixed blessing, as his mother is a person apparently receiving psychiatric assistance. Mr Keith Fung, Barrister-at-Law, observes in his submissions on behalf of Mr Fong, that this man has a personal background which is tinged with tragedy. I agree.

Mok Chi-yin

I have dealt with Mr Mok’s situation when I dealt with HCCC 236/2018.

Kwan On-tik, Andy

Facts found

Kwan On-tik admitted a summary of facts when he was committed for sentence in relation to a charge of conspiracy to traffic in dangerous drugs and there is also one in relation to possession of dangerous drugs. The summary of facts admitted by Mr Kwan also outlines the sequence of controlled purchases of dangerous drugs and the movement of cash, which I have already found to be the proceeds of sale of heroin in the alley of Portland Street. So far as the passing of cash between the area of the alley and the Hong Kong Jockey Club Betting Centre at Argyle Street, on one occasion cash was handed to Mr Kwan after it had been counted by a person who was a confederate of Mr Kwan. That was on 23 November 2016. Two days later, on 25 November 2016, early in the morning, Mr Kwan was seen driving his car to the carpark in the residential complex in which Mr Fong lived and was seen passing a bundle of cash to Mr Fong. A short time later, Mr Fong was arrested at his home and a roll of cash of the order of $43,000 and a Jockey Club voucher of $32,000 was found. I cannot say how much cash was passed from Mr Kwan to Mr Fong, but I am sure that given Mr Kwan’s position in the conspiracy, that was a substantial part of that bundle and made up a substantial amount of that found in the possession of Mr Fong.

Kwan On-tik was one of those arrested on 25 November 2016. At the time, he was in his residence at the Sun Hing Building on Portland Street where, at the time of his arrest, his wife and daughter were also located. A small amount of heroin was found in his residence, or a small amount of drugs were found in his residence. That amounted to 0.22 grammes of a solid containing 0.17 grammes of cocaine and 0.12 grammes of a mixture containing 0.03 grammes of heroin hydrochloride. That is the subject of the possession charge.

When Mr Kwan was searched, a key and a key card and his two mobile phones were found in his pockets. The key and the key card accessed Room 1309A in the same building. Inside that room, over 600 pellets of the same description as those which had hitherto been sold in the alley in Portland Street, were also found. Also, some unpacked heroin was found. The total weight of that heroin was 153.39 grammes. Along with the heroin and the pellets was found some packaging equipment and an accounting booklet which appeared to be drug transaction records. I have not seen the contents of the accounting book, but given the admissions made by Mr Kwan, the only reasonable inference is that it did contain accounting records.

Kwan On-tik, Andy made admissions to the police that he was only responsible for guarding the drug storage for his boss and the drugs did not belong to him. In this regard, he was referring to Room 1309A in the Sun Hing Building. He underwent video-recorded interviews. In the course of those interviews, he told the police that Room 1309A was used as a drug storage facility and that he was instructed to look after it by his boss, who he called “Ah Chung”. It is not plain who he was referring to when giving that name. He said he had been working for Ah Chung for 3 months and received payment of $1,000 a day. He also admitted ownership of an iPhone which revealed WhatsApp messages which showed him to be a member of the Honda Racing Group, to which reference has already been made. He asserted that one of those, one of the members of that group was Mr Fong.

An examination of the WhatsApp records of the Honda Racing Group revealed evidence of communication between members of the group, which included Mr Fong, Mr Kwan and Choi Suet-pai. As I have already outlined when dealing with the communications by WhatsApp in this group, when considering the case of Mr Fong, it is clear that the members of this group were concerned in detailed aspects of the management of the heroin selling conspiracy. The facts admitted by Mr Kwan clearly reveal he was an active participant in this group and that the only reasonable inference is that he was an important part of the management of the group. I am not sure I could go so far as the characterisation of Mr Kwan on the part of the prosecution as “one of the masterminds” of the conspiracy. I am sure he was an important part of the management. He was a person, or one of the persons entrusted with access to Room 1309A, where a quantity of drugs were found and a large number of pellets of precisely the same description as those sold in the alley in Portland Street were located. While I cannot say that it was Mr Kwan who was actually packing the drugs, packing was clearly part of the enterprise and as a member of the management of the enterprise, he would be at least concerned in the packing as well as other aspects of the enterprise, such as supply and stocking heroin for sale, money management and staffing matters. Indeed, as the Admitted Facts reveal, it is clear that Mr Kwan was directly concerned in money matters. However, the communications reveal a substantially wider involvement than just money matters and it is clear that Mr Kwan was indeed involved in the breadth of the operation. There is no suggestion that he was involved in the direct retailing of heroin.

Mitigation

Kwan On-tik, Andy was born in 1976 and was, at the time of the offence, 40. He had a secondary three education and worked as a garage worker. He claims to have been addicted to drugs. He is married and lives with his parents, wife and daughter. His criminal record goes back to 1995. There are numerous convictions for drug-related offences and perhaps of significance is that he has convictions in 2006, 2012 for trafficking in dangerous drugs. The latter conviction attracted a sentence of 32 months.

In mitigation, counsel for Mr Kwan contends that he should be sentenced on the basis of the heroin found in Room 1309A. I cannot accept this contention. In my opinion, the only reasonable inference is that he was an active member of the management of the conspiracy and must be sentenced on that basis. As will shortly appear, I think he is responsible for a substantially greater amount of heroin than the 150 grammes of heroin found in Room 1309A.

Choi Suet-pai

Facts found

Choi Suet-pai also admitted a summary of facts when he was committed for sentence. In that summary, he admits that heroin was sold in the alley in Portland Street and admits the controlled purchases already mentioned. He admits the movement of banknotes from that area of the alley, as has been described earlier. There was no evidence that he was ever directly involved in that activity.

Mr Choi was seen by the police arriving at the Sun Hing Building to which reference has already been made. He was in his private car and was seen entering the building carrying a recycle bag. Inside the recycle bag was 2.76 kilos of heroin. He made admissions that he knew it was what it was and there was more in his car. A search of Mr Choi’s car ensued and a further 535 grammes of heroin hydrochloride, cash in the amount of $67,500 and a Jockey Club cash voucher of $24,000 purchased on 24 November 2016. The heroin amounts to a total of 3.3 kilogrammes.

Choi Suet-pai, in answer to enquiries on behalf of the police, characterised his carriage of drugs as a delivery for reward. Perhaps more significant than that was his admission that the iPhone seized from him on arrest, revealed his membership of the Honda Racing Group. On his mobile phone were WhatsApp messages in which he and other members of the group discussed, amongst other things, the management of the drugs conspiracy. I will not repeat what I have said about this earlier. I am sure that Mr Choi was an active member of that group and was, accordingly, closely concerned in the management of the group. On one specific communication between Mr Choi and Mr Kwan On-tik, Andy, he is requested by Mr Kwan to collect and test a drug sample. There is no suggestion that Mr Choi, that his hands were dirtied with the direct selling of drugs. However, I am sure that the evidence is such as to prove his involvement in the management of the operation. I am sure that he was carrying the heroin found in the recycle bag to his car, to resupply the operation. This heroin was certainly for future sales. As I have mentioned already, that begs the question of how long a resupply this quantity of drugs would last. That is relevant to try to gain an insight into the quantum of past sales. As will appear shortly, this is of concern not only to Mr Choi, but to Mr Fong and Mr Kwan.

Mitigation

Mr Choi is a person of no previous criminal record. He is 26, works in a garage. He lives with his father and elder brother.

Prior to his arrest he, was employed in a garage. He has a young son who is now living with the son’s mother. Tragically, both Mr Choi’s parents died some years ago. The mother of Mr Choi’s son was a woman who Mr Choi had a relationship for a long time. They decided to marry and the marriage was to occur after the birth of their son. I have read and considered mitigation letters which speak well of Mr Choi. The mother of his son speaks well of him and expresses anxiety for his position. The other mitigation is from a member of the Legislative Council who speaks, amongst other things, of his willingness to volunteer.

Starting point

The starting point which I will shortly fix for each of the accused is on the premise of a sentence following conviction after trial. Obviously, that needs to be discounted in certain cases for reasons which I will outline shortly.

Conspiracy to traffic

In determining the starting point in respect of the offence of conspiracy to traffic in dangerous drugs, my principal focus is on the role played by the various accused. The starting points which I have fixed area as follows:

(1) Major management in the conspiracy

In this category, I place Fong Chi-wai, Kwan On-tik, Andy and Choi Suet-pai. Each of them was closely involved in the management of the conspiracy. Each was closely involved in the supply, packaging, finance and staff movement. It may well be that one or other of these three was more concerned with one aspect than the others, but I am sure they had full knowledge of these matters. I am sure, for example, that the heroin carried by Mr Choi on the date of his arrest, was destined for the storage and packaging facility in Room 1309A in the Sun Hing Building. I am sure that it would have been broken into small quantities and packaged as pellets and that it was intended by all three persons I have placed in this category as major managers of the conspiracy, as a future supply for the conspiracy.

However, that does not deal with the heroin which must have been sold through the retail outlet operated by the conspirators. There must have been a substantial amount of heroin which passed through the packing facility during the currency of the conspiracy. However, as I have already indicated, I am unable to quantify this amount with precision. I am sure that it is a rational assumption, and I make that assumption, that at least the same quantity as was being carried by Mr Choi was to be passed to the retail facility in Portland Street. It was almost certainly a good deal more than that. On that premise, I am sure that, at minimum, these three major players must have been concerned with the trafficking of at least 6 kilogrammes of heroin in terms of what passed through the system in execution of the conspiracy and what, as part of the execution of the conspiracy, was intended to pass through the system but which was interrupted by the arrests on 25 November 2016 of amongst others, Choi Suet-pai. It will be self-evident that I have rounded down the quantity of heroin that I am sure was involved.

On the guidelines articulated in HKSAR v Abdallah (above), the appropriate sentencing band is 4,000 grammes to 15,000 grammes, which attracts a range of sentence between 26 and 30 years’ imprisonment. Even though this involves an assumption on my part as to past sales, I am sure that this is a rational assumption. These two factors are a powerful basis for assessing the gravity of the conspiracy and I fix the starting point for these three men at 27 years.

(2) Middle management

There is only one member of this group, Cheung Man-kit. I have concluded that his role in the middle management was to provide assistance to management by Fong, Kwan and Choi. If an approximate equivalent to legitimate retail operation was required, I would characterise Mr Cheung as a floor manager.

I have found that he was directly and closely involved in the management of the proceeds of the selling of the heroin. I think it is unlikely that he was involved in any major way in the decision-making in the conspiracy and, it follows from that, that I do not think that it is likely that he was aware of the heroin being delivered to the packing facility by Mr Choi on the date of Mr Choi’s arrest. He would nevertheless have been aware that there was a packing facility, although I do not think that it is likely that he had any role in that facility. His job was principally concerned with being at the retail outlet in the alley at Portland Street.

When dealing with the three persons I characterise as being in major management, I was sure that it was rational to assume that about 6 kilogrammes of heroin was sold in pursuance of the conspiracy, during the operative period of the conspiracy. While I am sure that it is highly likely that Mr Cheung knew the quantity that would have been passing through the retail outlet, I cannot be sufficiently sure to fix him with knowledge of the whole 6 kilogrammes, which I think it is rational to assume passed through the outlet. However, Mr Cheung could not have failed to appreciate that a substantial quantity of heroin passed through the outlet, and I am sure that it is rational to assume that he must have known that at least 1 kilogramme of heroin passed through the outlet. On the basis of the guidelines in HKSAR v Abdallah (above), that places him in the sentencing band of 600 grammes to 1,200 grammes, which provides a range of sentence between 20 and 23 years. This is an appropriate basis for fixing the gravity of his conduct in the conspiracy. Taking into account Cheung’s role in the conspiracy to traffic in dangerous drugs, although I could be accused of an element of leniency, I fix his starting point at 20 years.

(3) Retailers

In this category, I place Mok Chi-yin and Lam Kwok-shing. In relation to Mr Mok, I found, based on his admissions and based on a conservative estimate of the number of days on which he was selling heroin, that a reasonable conclusion was that he was involved in the sale of 256 grammes of heroin. That places him in the sentencing band of between 200 and 400 grammes which mandates a sentence of between 12 and 15 years’ imprisonment. On that basis, I consider a sentence of 12 years and 6 months appropriate as a starting point. In relation to Mr Lam, I concluded on a conservative estimate he was responsible for selling something of the order of 37.5 grammes of heroin. On the basis of that, a sentence of 7 years is mandated.

(4) Lookout

Mr Lau Kwok-yau is in this category. As I have earlier concluded, Mr Lau assisted the conspiracy solely as a lookout. He did so, as I have found, knowing the heroin was being sold in the alley. He received a modest reward. I have not been able to find authority which assists in the fixing of sentence for a person in the position of Mr Lau. He was a cog in the machine, but on any view, he was a very, very small one. He was there for only part of the time, as I have already identified. Accordingly, I fix a starting point of 4 years.

Possession of dangerous drugs

In relation to the charges of possession of dangerous drugs, the obvious thing to point out is they pale into insignificance when compared to the gravity of the conduct involved in the conspiracy to traffic in dangerous drugs. Nevertheless, possession of dangerous drugs is a crime and the accused must be sentenced for it.

In relation to Mok Chi-yin, I fix the starting point at 1 month.

In relation to Kwan On-tik, Andy, I fix the starting point at 3 months.

In relation to Fong Chi-wai, I fix the starting point at 6 months.

Discount for sentence

A reduction in the starting point for sentence is to be accorded to those who plead guilty: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. Plainly, the accused who were convicted after trial in 236/2018, are not entitled to any discount on their sentence in relation to that charge. Those who pleaded guilty and were committed for sentence in 237/2018 are entitled to a full discount of one-third from the appropriate starting point. That applies to the charges of conspiracy to traffic and the charges of possession of dangerous drugs.

That leaves Lam Kwok-shing, who was committed for trial but pleaded guilty. He notified his change of plea through his lawyers in October 2018, which is a matter of weeks after the committal in August 2018. The fact that the formal plea was as late as 24 May 2019 (which was shortly before the commencement of the trial in 236/2018) is not the critical point. What is critical is the date of the notification to the prosecution and the High Court. Given the timing of that notification, a reduction in the discount close to which would otherwise be accorded to a person who pleaded guilty on committal is appropriate, but I think, in all the circumstances, a small reduction only is indicated. The discount I intend to apply against the starting point for Mr Lam’s sentence is 30 per cent.

There are other bases for reduction. I am fully aware of the prescriptive approach to sentencing in drugs cases and perhaps more forcefully in drugs cases involving cocaine, heroin and ‘Ice’. In Lam Hak Hung v R in 1972 (CACC 724/1972), Huggins J observed:

“It has been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he has embarked upon the manufacture of dangerous drugs or involved himself in trafficking of dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old-people who may have some ground for pleading for the mercy of the court if they are in fact arrested.”

The words of this authority for sentences of this kind of drug applying to such sentences, apply equally to the lame, the halt and the blind and the young and the old, and that cannot be ignored. The rationale for this approach is using a phrase of Biblical origins (at least so far as the lame, the halt and the blind, see Luke 14:21 in the King James Bible), and it is easily understood why that is so. Nevertheless, as an act of compassion which recognised the age and condition of Mr Lau, I intend to reduce his sentence by 3 months.

Cheung Man-kit conducted his mitigation on the basis he now admits some role in the conspiracy. The fact that the role he now admits is extremely limited was not the operative fact of rejecting this as a basis for mitigation. The real basis for me rejecting the mitigation was that the indication of responsibility came unacceptably late, and even as I say, the limited basis for responsibility.

All of the accused except Choi Suet-pai, have a history of drug consumption and/or trafficking. I have no doubt that such an involvement is a plausible explanation of how they got to be in the position they did. The ravages of addiction are well-known, and if anyone was ever looking for examples, all they need to look is at most of the members of this conspiracy. Each of those involved with drugs prior to joining this conspiracy has in different ways, been through some form of family dislocation and other forms of suffering. I was, I must confess, particularly moved by the history of Mok Chi-yin, whose fall from a skilled occupation and a good job and a marriage, to a petty seller of drugs, struck me as a long and tragic fall in slow motion. The same impulse to mercy that drove me to slightly reduce the sentence for Lau also drives me with respect to Mr Mok. Although the starting point he has received is based on estimate of drug selling, which is very conservative, his history moves me to reduce his sentence by a further 6 months. Many would consider that he richly deserves the whole of his sentence, as outlined in the starting point, but I have a somewhat different view.

Resolution

This was a case which revealed in depressing detail, a well-organised scheme to sell heroin on a retail basis. It involved the shameless exploitation of addicts and the fact that those addicts would, like as not, have got their heroin elsewhere had the people in this conspiracy not been operating in the alley at Portland Street, might be true but hardly helps their cause. Some, but not all of the accused in these two cases, were addicts themselves. Indeed, the actual sellers of heroin, on what I might term “the shop floor” was done by people who were addicts and on the margins of society. Although there is no direct information as to the profile of customers, it would be safe to say that many of those would also be addicts, in marginal health and on the margins of society. Addicts selling to their fellow addicts is, I suspect, one of the darker aspects of addiction. That all of this is a tragedy is not open to question. Indeed, the use of the word “tragedy” in this context, cannot be anything other than a demonstration of the outer boundaries of understatement. This case leaves one in a state of despair.

The duty of the courts is to impose sentences which reflect that reality and do so in a manner which is in accordance with settled policy and emerges from the judicial policy of long-standing. Doing the best I can, and trying to temper justice with mercy, I order that the following sentences be imposed for the reasons I have expressed:

Fong Chi-wai, on the charge of conspiracy to traffic in dangerous drugs, I reduce the starting point of your sentence by one-third, making a sentence of 18 years. In relation to the charge of possession of dangerous drugs, I reduce the starting point of 6 months by one-third, leaving 4 months’ imprisonment. I order that this sentence run concurrently with the sentence imposed on the conspiracy to traffic in dangerous drugs.

Kwan On-tik, Andy, on the charge of conspiracy to traffic in dangerous drugs, I reduce the starting point of your sentence of 27 years by one-third, making a sentence of 18 years. In relation to the charge of possession of dangerous drugs, I reduce the starting point of 3 months by one-third, leaving a sentence of 2 months’ imprisonment. I order that this sentence run concurrently with the sentence imposed on the conspiracy to traffic in dangerous drugs.

Choi Suet-pai, I reduce the starting point of your sentence by one-third, making a sentence of 18 years.

Cheung Man-kit, I fixed your starting point at 20 years for your involvement in the conspiracy to traffic. You are not entitled to any discount, and given that your actual sentence will be greater than those in the major management of the conspiracy, the power of the discount for pleading guilty is made plain for all to see. You will go to prison for 20 years.

Mok Chi-yin, in relation to the conspiracy to traffic in dangerous drugs, I fixed the starting point for your case at 12 years and 6 months. In the circumstances of your case, I reduce the starting point for that offence to 12 years. That is the sentence I impose upon you in relation to the conspiracy to traffic in dangerous drugs. In addition, you pleaded guilty to the possession of dangerous drugs, and you are entitled to a discount for your plea. The sentence on the possession of dangerous drugs charge will be a sentence of 20 days. I order that be served concurrently with your sentence of 12 years for trafficking in dangerous drugs.

Lam Kwok-shing, in relation to the conspiracy to traffic in dangerous drugs, I fixed the starting point for your case at 7 years. You are entitled to a 30 per cent reduction for your plea of guilty, which results in a sentence of 4 years and 10 months.

Lau Kwok-yau, you were convicted after trial for conspiracy to traffic in dangerous drugs and I fixed a starting point of 4 years in your case. As an act of mercy, I reduce your sentence by 3 months and you will go to prison for 3 years and 9 months’ imprisonment.

Those are the orders I make.