COURT: There are two defendants, Law Ming-yin and Sham Wing-ki, in HCCC 105/2023. They will be addressed as the 1st and the 2nd defendant respectively. They pleaded guilty in the committal stage in the Eastern Magistracy and were committed to the Court of First Instance for sentence.
The 1st defendant pleaded guilty to two counts, the 1st and the 3rd counts on the indictment. In the 1st count, he is charged with, between an unknown day in mid-August 2021 and the 3rd day of September 2021, conspired with another person to unlawfully traffic cocaine. In the 3rd count, he is charged with between the 3rd and the 4th day of September 2021, together with the 2nd defendant, conspired with others to unlawfully traffic 5.14 grammes of a solid containing 4.19 grammes of cocaine.
The 2nd defendant also pleaded guilty to three counts, the 2nd, the 3rd and the 4th counts on the indictment. In the 2nd count, she is charged between late August 2021 and the 3rd day of September 2021, conspired with another person to unlawfully traffic cocaine. The 4th count charged her between the 4th and the 5th day of September 2021, conspired with Hong Tsz-ho and others to unlawfully traffic 103.32 grammes of a solid containing 87.81 grammes of cocaine and 3.39 grammes of a crystalline solid containing 3.17 grammes of methamphetamine hydrochloride.
There is one defendant, Hong Tsz-ho, in HCCC 104/2023. I shall address him as the 3rd defendant. He was committed to the Court of First Instance for trial. On 11 March 2024, about a month before the trial was set to commence, the 3rd defendant indicated that he will plead guilty to the charge he faced. The 3rd defendant, on 3 April 2024, pleaded guilty to the only count, which is in substance the same as the 4th count in HCCC 105/2023, before me. The only difference which is not material is that in the particulars, the charge which the 3rd defendant pleaded guilty to name only the 2nd defendant as the co-conspirator.
It can be seen that the two cases are linked by the 2nd defendant.
The facts admitted by the defendants are as follow.
In late hours on 3 September 2021, the 1st defendant went to Canton Road near Haiphong Road to get drugs from the 2nd defendant, and at around 12.06 am on 4 September 2021, outside Gateway Hotel in Tsim Sha Tsui, he met the 2nd defendant and received from her:-
(a) one transparent resealable plastic bag containing 11 transparent and resealable plastic bags containing a total of 4.64 grammes of a solid containing 3.78 grammes of cocaine.
(b) one transparent and resealable plastic bag containing two transparent and resealable plastic bags containing a total of 0.25 grammes of a solid containing 0.21 grammes of cocaine.
(c) two transparent and resealable plastic bags containing 0.25 grammes of a solid containing 0.20 of cocaine.
The total weight of cocaine was 4.19 grammes and this is the 3rd count in HCCC 105/2023. The 1st defendant was arrested around 1 am on 4 September 2021 and he had a mobile phone and cash, HK$6,259.90, with him.
On 5 September 2021 at about 1.27 am, 3rd defendant was intercepted by police while he was leaving Room 505 of the New World Millennium Hong Kong Hotel. Police entered the room and found the 2nd defendant sitting next to a table and was packing dangerous drugs. On the table, there were:-
(a) three transparent and resealable plastic bags containing a total of 71.50 grammes of a solid containing 61.6 grammes of cocaine.
(b) 17 transparent and resealable plastic bags containing a total of 4.62 grammes of a solid containing 4.10 grammes of cocaine.
(c) one plastic box containing 22 grammes of a solid containing 17.6 grammes of cocaine.
(d) another plastic box containing 5.2 grammes of a solid containing 4.51 grammes of cocaine.
(e) three plastic bags containing a total of 3.39 grammes of a crystalline solid containing 3.17 grammes of methamphetamine hydrochloride.
The total weight of cocaine was 87.81 grammes and the weight of methamphetamine hydrochloride was 3.17 grammes.
This is the 4th count in HCCC 105/2023 and the count in HCCC 104/2023. As I said, they are the same in material particulars.
Other than the dangerous drugs, on the table, there were three piles of transparent resealable plastic bags, two digital scales, two piles of cash, HK$60,750 and HK$9,770 respectively.
All defendants were interviewed under caution. The 1st defendant admitted, inter alia:-
(a) Since mid-August 2021, he worked for a man named ‘Ah Lok’ to traffic in cocaine.
(b) He had completed 10 odd orders per day for half a month since mid-August 2021, earning 2 to 3,000 daily.
(c) He delivered the drugs in three different quantities, around 0.2 gramme, 0.5 gramme and 1 gramme.
(d) But he usually delivered it 1 gramme per order.
This is the basis of the 1st count in HCCC 105/2023.
The 2nd defendant admitted, inter alia:-
(a) About one week before 3 September 2021, she started working for ‘Ar Siu’ to traffic in DD, cocaine.
(b) She received two to three ounces of drugs daily.
(c) On the 1st occasion, she collected two bags of drugs and for one bag, she smashed the drug and packed it into three categories with different weights, namely:
(i) 80 bags each containing 0.15 gramme of drug;
(ii) 8 to 10 bags each containing 0.3 gramme of drug; and
(iii) finally 8 to 10 bags each containing 0.6 gramme of drug.
This is the basis of the 2nd count in HCCC 105/2023.
In relation to Count 4 in HCCC 105/2023 which is in all material aspects the same as the count in HCCC 104/2023, the 2nd defendant also admitted, inter alia:-
(a) that she was packing cocaine in the hotel room,
(b) she had handed over some drugs to some people downstairs to the hotel,
(c) she had asked D3 to deliver bags of drugs to others downstairs in the hotel.
As to the 3rd defendant, he admitted, inter alia, under caution that:-
(a) he had helped the 2nd defendant to deliver drugs twice downstairs in the hotel,
(b) he had also collected money when delivering drugs.
However, he said, 2nd defendant had asked him to hand over an object wrapped with tissue paper downstairs and collect HK$9,500 twice. But he had no knowledge about the drugs as he had never opened the tissue paper to see what was wrapped inside. Furthermore, he did not know why he would collect money for the deliveries.
Mobile phones of the 2nd defendant and the 3rd defendant were examined and in 2nd defendant’s phone, there were records revealing communications between them in the early hours of 1 September 2021. Apparently, 2nd defendant was instructing the 3rd defendant to go downstairs to look for a taxi with ‘38’ as the last digits and took with him two units. 3rd defendant now admits between 4 September 2021 and 5 September 2021, he conspired with the 2nd defendant to unlawfully traffic in the dangerous drugs specified in the count in HCCC 104/2023.
For the count in HCCC 104/2023, which is also the 4th count in HCCC 105/2023, the drugs involved are of two types, namely, 87.81 grammes of cocaine and 3.17 grammes of methamphetamine hydrochloride.
According to R v Lau Tak Ming and Others, CACCS 230 and 269/1989, for 50 to 200 grammes of heroin, 8 to 12 years and in Attorney General v Rojas [1994] 1 HKC 342, sentencing guidelines for heroin are applicable to cocaine. As a result, for 87.81 grammes of cocaine, I adopt an initial starting point of 9 years.
According to HKSAR v Tam Yi Chun, CACC 524/2011. For 3.17 grammes of methamphetamine hydrochloride, 3 to 7 years and I will adopt an initial starting point of 4 years.
In view of two types of drugs, which is an aggravating factor, the initial starting point of 9 years for cocaine has to be enhanced and the question is by how much? Checking the appropriate enhancement against the three tests in HKSAR v Chan Yuk Leong, CACC 318/2013, an additional 2 months seems to be right.
I therefore adopt a starting point of 9 years and 2 months, ie, 110 months.
For the 3rd count in HCCC 105/2023, the drugs involved is 4.19 grammes of cocaine, the guideline suggested 2 to 5 years for up to 10 grammes and I adopt a starting point of 3 years.
For the 1st and the 2nd counts in HCCC 105/2023 against the 1st and the 2nd defendants respectively, there is no specified amount of drugs. It is said by the Court of Appeal in HKSAR v Chan Kam Loi, CACC 410/2012:
“...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.
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 enable the court to have recourse to the quantity based sentencing bands will inevitably vary from case to case.”
From the 1st defendant’s admission, I can reach a conclusion which fairly reflects the quantity of drugs that were trafficked in the 1st count.
He had worked for about half a month and completed 10 odd orders per day, each order being around 1 gramme and that is the usual way he delivered it, though he would deliver it in two other different quantities, namely, 0.2 gramme and 0.5 gramme. The purity of drug is around 0.8 as demonstrated by the drug seized in the 3rd count.
With this formula, the weight of cocaine trafficked in this half a month is 120 grammes, ie, 15x10x1x0.8=120g.
I am prepared to make an adjustment in favour of the 1st defendant, given the possible margin of variation in the quantities delivered per order and for the fact that but for his own admissions, the prosecution would not have known about the details of the conspiracy. I therefore reduce the weight from 120 grammes to 100 grammes. I am guided in this respect by the Court of Appeal in the case of HKSAR v Tsang Ka Wing, CACC 97/2016.
It should be noted that I used 10 in my formula despite the 1st defendant admitted that he completed 10 odd orders per day. I have made an assumption leaning in favour of the 1st defendant already. I am therefore of the view that the figure 100 grammes, I arrived at, reflects fairly the cocaine he had trafficked in that half a month. According to guidelines in Lau Tak Ming, I shall adopt a starting point of 9 years and 3 months for the 1st count.
So far as the 2nd count against the 2nd defendant is concerned, Ms Cheng, for the 2nd defendant submitted that there is insufficient evidence before me to assess the quantity of drugs trafficked in that count. She said her admission under caution are weighed with uncertainties and were taken out of context in the Summary of Facts admitted by her at the committal stage.
Faced with this assertion by the 2nd defendant, I have invited Ms Cheng to put the interview under caution before me so that I can decide on these alleged uncertainties or weakness. However, my invitation was declined. As a result, I have nothing but the Summary of Facts admitted by her to see whether I can assess the quantity of drugs involved in this count.
Ms Cheng further submitted that in paragraph 13(b) and (c) of the Summary of Facts, one can see the inconsistency in weight. She said in paragraph 13(b), the 2nd defendant admitted she received 2 to 3 ounces of drugs daily. However, in paragraph 13(c), she admitted on the first occasion the drugs she broke up and repacked weight totally, at most, is 21 grammes, much less than 2 to 3 ounces. However, I must point out the quantities specified in paragraph 13(c) are about one of the two bags of drugs she received on the first occasion. There is no information as to the other bag or whether they are necessarily of the same weight or size. I do not therefore see any inconsistency in that paragraph, nor from the whole of the Summary of Facts.
She had admitted she worked for ‘Ar Siu’ for about a week and received 2 to 3 ounces daily. 1 ounce is 28.35 grammes. I will give her the same adjustment for the same reason as in the case of the 1st defendant. Therefore, I assess the quantity of drugs involved in the 2nd count to be 317.52 grammes, ie, 7x28.35x2x0.8.
It should be noted I used the purity of 0.8, but the purity of cocaine in the 4th count in fact ranges from 0.8 to 0.88. I also lean in favour of her by using 2 ounces in my formula instead of 2.5 suggested by Mr Poon. Furthermore, I have ignored the relatively smaller quantity of methamphetamine hydrochloride in that count when I assess the quantity of drugs in the 2nd count. Other than this, I see no other room for further adjustment that I have arrived at. Therefore, the starting point should be one of 13½ years.
The 1st Defendant
The 1st defendant was 14½ at the time of the offence and came unfortunately from a broken family. He lived with his mother and unfortunately the mother was subject to violence and abuse by his natural father. And this caused the 1st defendant to suffer from emotional problems and presented signs of stress. For this, he has to receive psychological service from March to July 2019.
Although he did not perform very well in his academic performance, his conduct was not bad at all. However, when he was promoted to the secondary school, conduct deteriorated and there are from time to time absent from school and late for school.
With this background in fact he mixed with undesirable peers as submitted to me by Mr Yuen and because of mixing with those undesirable peers, he had committed a series of offences. For an offence of theft, he received a superintendent caution. And for an offence of robbery, he was sent to detention centre. Worse still, he committed the present offence while he was on bail for the robbery.
I am prepared to accept that he committed this series of offences due to influence from undesirable peers. In view of the closeness of time that the offences were committed, his age, family background, I will not exceptionally take the fact that he committed the present offence while on bail for the robbery as an aggravating factor in considering the appropriate sentence for him.
It is urged upon me that he is in the category of extreme youth at the time of these offences and he pleaded guilty at the earliest opportunity, full confession to police enquiry. After hearing Mr Yuen, I adjourned his sentence pending probation and training centre reports.
I must say that those reports are very positive about the 1st defendant. Not only it confirmed the unfortunate background of the defendant, but also and more importantly it seems that he had learnt a bitter lesson and had sought to reform himself while he was on bail.
Both probation officer and the Correctional Service recommend probation order and training centre respectively. The probation officer suggested with a number of special requirements. It may help the defendant to reform himself.
Had 1st defendant been an adult at the time of the offences, I would have sentenced him to a term of imprisonment for 6 years for both counts. I say 6 years because the 3rd count is part and parcel of the 1st count and the sentence on the 3rd count would run concurrently with the 1st count.
There is no reason to doubt that he would not get the remission for good behaviour in prison. Therefore, he would have been in gaol for 4 years. I consider that he had been in custody for the present offences for nearly 22 months and the regime in the training centre is one of not less than 18 months depending on his performance.
As a result, if I send him to training centre, he will lose liberty for at least 40 months. If I make a training centre order, he will be subjected to a supervision order after release and would be liable to be recalled if he does not behave himself.
For an offender as young as the 1st defendant, the court would like to see him reform himself and tends to pay more emphasis on rehabilitation. Had the 1st defendant stood trial alone and no adult co-accused, his case would have been dealt with much earlier and would have been dealt with in the juvenile court. It is always difficult to strike a right balance between punishment and rehabilitation for offenders as young as the 1st defendant.
Having considered the matter thoroughly, I came to the conclusion that probation order does not reflect the gravity of the offence that he had committed despite his young age. I consider that a training centre order is the appropriate sentence, though I must say it is unusual for trafficking 100 grammes of cocaine. I have taken into consideration and I make this order his remorse since arrest, his age, I sentence you for both counts that you have pleaded guilty to, to training centre.
The 2nd Defendant
2nd defendant in mitigation, it was submitted that the 2nd defendant was 18 at the time of the offences. She has a clear record and she committed the offences in order to support her own addiction to drugs. Though she had worked as a waitress in a restaurant, her earning declined the business of the restaurant was adversely affected by the pandemic. The restaurant that she worked for speaks highly of her and I have the letter before me.
She pleaded guilty at the earliest available opportunity and had been fully co-operative with police enquiries. Had it not been her own admission, there would not be a 2nd count. The only significant mitigating factor in her case is her early plea. I give her a full one-third discount.
I will not give her any discount for being 18 at the time of the offences for the offences she had committed are of the utmost gravity. Otherwise, a wrong message would be sent out. A young person like her should be deterred from, rather than tempted. I would not give any further discount for her full confession in the 2nd count as that has already been taken into account when I discount the quantity of drugs that I have assessed in the 2nd count.
I sentence you to a term of 9 years’ imprisonment for the 2nd count. For the 3rd count, I sentence you to 2 years’ imprisonment. For the 4th count, I sentence you to 6 years and 40 days. I am persuaded that the 3rd and the 4th counts are overt acts of the 2nd count, hence, I ordered that the sentence on the 3rd count to run concurrently with the 4th count and they in turn run concurrently with the 2nd count. So the total sentence on you is one of 9 years.
The 3rd Defendant
3rd defendant was 16½ at the time of the offence. He only indicates his plea of guilty a month before his trial was set to commence. It can also be seen that he did not fully confess to the crime when being enquired about the offence. He also came from a broken family and it was said he committed the present offence due to keeping bad company and it was submitted on his behalf that he got no monetary reward. In view of his clear record and youth, although not extreme youth, I call for a training centre report pending sentence. The report is also a positive one, confirming first of all his unhappy or unfortunate childhood and the report also revealed that while he was on bail, he had been able to maintain in gainful employment.
Unlike the 1st defendant, the 3rd defendant was not in the category of extreme youth, although young. Unlike the 1st defendant, he could not have been dealt with in the juvenile court. For his indication of plea before the trial, I will give him a discount of 22 per cent. As I said earlier, I adopt a starting point of 9 years and 2 months for the count that you had pleaded guilty to. Hence, for your plea, the sentence would come down to 85.8 months.
Despite the fact that you had been in custody for just over 1 year and 11 months, I am of the view that training centre is manifestly inadequate for such a serious offence that you have committed. Having said that, I am prepared to give you a further discount for your age. I further bring it down to and round it up to 82 months. This represents a discount in total of just over 25 per cent from the starting point that I have adopted. You are sentenced to 6 years and 10 months.