HKSAR v. FONG LING PO AND OTHERS

HCCC 78/2021
HCCC 79/2021
(Heard Together)

[2023] HKCFI 2569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 78 and 79 OF 2021

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(HEARD TOGETHER)

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REASONS FOR SENTENCE

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1.  The 3 defendants were originally jointly charged with one count of trafficking in a dangerous drug[1]. (Count 1).

2.  D1 was charged solely with one other count of trafficking in a dangerous drug (Count 2).

3.  D1 and D2 pleaded guilty before Magistrate Mr. Edward Wong on 15 March 2021 to their respective charges and were committed to the Court of First Instance for sentence. Their case was given the number of HCCC 79/2021.

4.  D3 pleaded not guilty to Count 1 on the same day and was committed for trial. D3’s case was given a separate case number of HCCC 78/2021.

5.  By way of a letter to the Department of Justice dated 18 July 2023, D3 indicated his intention to plead guilty.  D3 did eventually plead guilty before me on 29 September 2023, admitted to the summary of facts, and was duly convicted.

6.  In HCCC 79/2021, the particulars of the charges against D1 and D2 are as follows:

Count 1: D1 and D2, on the 19^th day of September 2019, at Room 7, 21^st floor, Block B, Hong Fai Building, Nos. 523-529 Shun Ning Road, Cheung Sha Wan, Kowloon (hereinafter as ‘Room 7’), in Hong Kong, together with CHIEN Sin-wei (D3), unlawfully trafficked in a dangerous drug, namely 16.175 litres of a liquid containing 9.322 kilogrammes of a solid upon drying containing 6.4688 kilogrammes of cocaine.

Count 2: D1, on the 19^th day of September 2019, at Room B4, 8^th floor, Man Shing Building, Nos. 41-45 Temple Street, Yau Ma Tei, Kowloon (hereinafter as ‘Room B4’), in Hong Kong, unlawfully trafficked in a dangerous drug, namely 285 grammes of a solid containing 236 grammes of ketamine.

7.  In HCCC 78/2021, the particulars of the sole count against D3 are as follows:

D3, on the 19^th day of September 2019, at Room 7, 21^st floor, Block B, Hong Fai Building, Nos. 523-529 Shun Ning Road, Cheung Sha Wan, Kowloon (which is the above Room 7), in Hong Kong, together with D1 and D2, unlawfully trafficked in a dangerous drug, namely 16.175 litres of a liquid containing 9.322 kilogrammes of a solid upon drying containing 6.4688 kilogrammes of cocaine.

8.  The particulars of the charge against D3 are identical to that of Count 1 in HCCC 79/2021, save for the order of the listing of the co-defendants.

SUMMARY OF FACTS

Count 1 in HCCC 79/2021 against D1 and D2, as well as in HCCC 78/2021 against D3

9.  Room 7 in count 1 was the target unit of an anti-narcotics operation. D2 and D3 were intercepted when they were about to enter the premises at 1135 hours. Upon entry, D1 and another female (Siaw Mey-ramai[2])  were found inside.

10.  9 wine bottles with liquid resembling red wine inside were found in Room 7.  Government Chemist confirmed that the total 16.175 litres of liquid in fact contained 9.322 kilogrammes of a solid upon drying, with a narcotic content of 6.4688 kilogrammes of cocaine.

11.  D2’s fingerprints were found on the outside and inside of the cabinet where 4 bottles of the ‘wine’ were seized.  Her DNA were also found on the packages of 2 glass bottles found in Room 7.

12.  As at September 2019, the estimated street value of the dangerous drugs found in Room 7 was HK$11,764,364 to $12,362,972.

Count 2 in HCCC 79/2021 against D1 only

13.  At 1313 hours the same day, D1 was taken to Room B4 where 2 zip lock bags containing the ketamine in Count 2 were found.  The Police also found re-sealable plastic bags, an electronic scale and a plastic bag sealing machine there.

14.  D1’s right palm print was found on a wooden door in Room B4. Her fingerprints and DNA were found on the packaging of the ketamine.

15.  As at September 2019, the estimated street value of the ketamine found in Room B4 was HK$192,375.

16.  Through her admission to the Summary of Facts read out in court, D1 admitted and accepted that she was knowingly in possession of the dangerous drugs in counts 1 and 2 for the purpose of trafficking in them.

17.  Through her admission to the Summary of Facts read out in court, D2 admitted and accepted that she was knowingly in possession of the dangerous drugs in count 1 for the purpose of trafficking.

What the defendants said under caution

18.  Upon their arrest for the offence of trafficking in a dangerous drug, the defendants said the following under caution.

D1

19.  D1 claimed under caution that she knew the ‘wine’ in Room 7 contained dangerous drugs but did not know what kind they were.

20.  As to the ketamine in Room B4, D1 admitted that she would sell the two packets of “cocaine” (D1 later clarified them to be ketamine)  to others for a HK$1,000 ‘reward’ from someone called ‘big sister’.  She did not know how much ketamine were inside the bags.

21.  In her subsequent cautioned video recorded interview, D1 said she met the said ‘big sister’ in a bar in Malaysia 2 years ago, who offered her RM[3]4,000 (around HK$8,000)  per bottle for trafficking in drugs disguised as wine.  An extra RM500 per bottle would be paid to her for each one sold.

22.  D1 rented Room B4 (Count 2)  under her name since 28^th August 2019. ‘Big sister’ had paid for her air ticket to Hong Kong and had given her HK$50,000 in advance to cover the rental for two months as well as her personal expenses.

23.  D1 said she also met D2 in Malaysia. D2 was the person who rented Room 7 (Count 1)  and she also moved some of the ‘wine’ there.

24.  D1 communicated with D2 and ‘big sister’ via a WhatsApp group with their respective user name of ‘Bii’ and ‘joey2’.  The group was formed on 25^th August 2019.

25.  D1 learned about D3’s arrival in Hong Kong from ‘big sister’, who told her that D3 will be handling the ‘wine’.

26.  Although both D2 and D3 were to be paid, D1 claimed that she herself was not going to be paid for the transaction since she was there only to teach D2 and D3 how things should be done.

27.  D1 explained how the ‘wine’ labels show the trafficker’s name and the date of trafficking.  “AYUMI 09/15” indicated the drugs were trafficked by a trafficker name Ayumi who brought the bottle from Malaysia to Hong Kong, which had been stored in Room B4 since 15^th September 2019.

28.  D1, D2 and D3 were instructed by ‘big sister’ to collect the ‘wine’ from Ping An Building on the day of the charge. They all went to Room B4 to move 5 bottles to Room 7, using the blue luggage that was seized, which belonged to D2.

29.  D1 herself took the remaining 4 bottles from Room B4 to Room 7 between 9^th and 13^th September.

D2

30.  D2 claimed under caution that she received RM$3,000 to come to Hong Kong to deliver the dangerous drugs in the ‘wine’.

31.  In her subsequent cautioned video recorded interview, D2 said she met D1 in Malaysia about one year before, who introduced her to trafficking in ‘wine’ for boss “@Joey” to earn some quick money. “@Joey” paid D2 HK$5,000 and offered her RM$3,000 for each round of trafficking drugs to Hong Kong.  It was D1 who arranged for D2’s air tickets and accommodation, and D2 arrived here on 10^th September 2019.

32.  D2 found Room 7 online at a monthly rental of HK$20,000. “@Joey” handed the money to D1 in Malaysia who passed it on to D2 in Hong Kong. D2 was told to remove the wine bottle labels and paste new ones on. D2 trafficked in the drugs for quick cash, under the instructions of D1 or “@Joey”, which were given via WhatsApp. D2 knew the ‘wine’ contained dangerous drugs at a later stage but by then it was too late for her to back out.

33.  D2 was told that D3 was going to take over from her, and that she was to teach D3 the handling procedures.

D3

34.  D3 claimed under caution that he came to Hong Kong from Malaysia on 18^th September 2019 after being recruited by a ‘Joey’ to handle some ‘wine’ here.  He was told to contact D2, and to learn from her how to wrap and unwrap the ‘wine’.  D3 claimed he did not know the quantity nor nature of the drugs in the ‘wine’.  D3 was told he will be the replacement of D2 in the transportation of the ‘wine’.

35.  D3 was paid RM3,000 in advance, and was promised another RM1,200 for 3 days’ work in Hong Kong.

36.  Through his admission to the Summary of Facts read out in court, D3 admitted and accepted that he knew the ‘wine’ in Room 7 contained dangerous drugs and that he was knowingly in possession of them for the purpose of unlawful trafficking.

PREVIOUS CONVICTIONS

37.  All 3 defendants are Malaysian nationals and are of previously clear record in Hong Kong.

D1’s background and mitigation

38.  D1 is 27, educated up to Primary 6 level in Malaysia.  She grew up in slightly unfortunate family circumstances, with her parents divorced when she was 7 and she had to stop living with her mother when she was diagnosed with schizophrenia when she was 10.

39.  D1 went to live with her father but was not able to get along with her stepmother who abused her when she was drunk. D1 ran away when she was 14 and worked as a casual worker to support herself.  D1 did return to live with her father at 16, but things did not work out and she ran away again when she was 19, which was the year she met her ex-husband.  They got married and have 2 sons (aged 5 and 7).

40.  D1 left them 3 years later when she was 22 and went back to live with her father. She only maintained limited contact with the children. D1 worked as a hairdresser between 22 and 24, found a boyfriend and had a daughter together. That relationship did not last long and they separated. D1 then worked at an online casino, as well as a beer promoter at different bars for about 6 months, but had to quit in March 2019 for health reasons.  She had since then been relying on her savings, occasionally working as a hairdresser to maintain a living.

41.  D1 met a woman called Joey Pang while working at one of the bars. When Joey learned that D1 was in financial difficulty after quitting, she persuaded D1 to bring dangerous drugs contained in red wine bottles into Hong Kong for RM1,200 each time, but it is Ms. Yip’s submissions that she never did so bring any such drugs.

42.  It was put forward in mitigation that D1 was not the mastermind of the importation of the drugs into Hong Kong, and that she was merely a recruited foot soldier who followed instructions, with her trip financed entirely by the organizers.

D2’s background and mitigation

43.  D2 is 28, single and educated up to lower secondary school level in Malaysia.

44.  D2’s father left the family shortly after her birth and she grew up under the sole care of her mother. Since her mother had to work for a living, most of the time D2 would be left with her aunt or at a ‘single parent orphanage’, where she had been physically abused.

45.  Through her letter, D2’s mother tells the court how D2 is a person eager to help, which led to her trying to make some quick money in order to help out a friend who was suffering from illness, and asks for leniency on behalf of her daughter.

46.  While D2 was in remand in Hong Kong, she had successfully completed a program held by the Hong Kong Management Association, and was awarded the “Distance Learning Certificate in Insight into the Key Aspects of Retailing Management” on 9^th April 2022. She had since then obtained further certificates in other aspects.

47.  The court is told that D2 had significantly assisted in Father Witherspoon’s campaign against drug trafficking, with her mother meeting with the Malaysian and Hong Kong media, as well as providing details of ‘joey’ to the Malaysian police.

D3’s background and mitigation

48.  According to his antecedent statement, D3 is 28, educated up to lower secondary school level. D3 was living in Malaysia with his parents, 3 sisters and 1 brother, and was working as a chef prior to his arrest here.

49.  In his very succinct mitigation, Mr. Iu pointed out that D3 was about 23 and a half years old when he was recruited by Joey to come to Hong Kong to transport wine here.  It was because he was desperate for money that he had agreed to do so.

50.  D3’s plan was to stay in Hong Kong for 3 days.  He came with a friend, William, arriving on the afternoon of the 18^th, the day before the arrest. They checked into a hotel where they were to stay for the duration here.

51.  D3 contacted D2 on the day of his arrival as told, and they met up on that same evening at Room 7.  D1 and D2 were supposed to teach him how to deal with the things there, but they did not start the exercise that night. D3 was told to come back the following morning, which he did, and met up with D2 again who took him back to the flat where they were arrested.

52.  D3 knew there were dangerous drugs but did not know what kind. He did not know the source of the drugs, and did not have anything to do with their importation. D3 was just a simple courier, at the lowest possible rung on the ladder of the trafficking hierarchy.

53.  Mr. Iu also pointed out that D3 had nothing to do with the renting of the flats, or the organization of the operation, indicating that he had a different and lesser role to that of D1 and D2.

54.  In any event, D3 pleaded guilty, indicated his intention to do so in July 2023, and should in the circumstances be granted a 20-25% discount.

55.  Mr. Iu submitted that considering all the circumstances of the case, in particular D3’s lesser role, the court can decide not to follow strictly the guideline starting point, and adopt a lower one within reason, because D3 was just a young man foolishly committing the offence, an exercise which he had not even started.

SENTENCING

Count 1

56.  Following the six-step sentencing approach set out in HKSAR v Herry Jane Yusuph [2020] HKCA 974, I first of all find that the applicable tariff band is “4,000-15,000 grammes; 26-30 years” ^[4] for the 6,468.8 grammes of cocaine.

Culpability

57.  As to the defendants’ culpability, I find that there is insufficient evidence to suggest that any one of them had physically imported the drugs into Hong Kong, nor is there sufficient evidence to show that they had taken part in arranging for the drugs to be imported into Hong Kong.

58.  As such, I find that there is insufficient evidence to apply the label of there being an international element in their commission of the offences.

59.  There is, however, the aggravating factor of them coming to Hong Kong for the specific purpose of committing a criminal offence, which is dealt with below.

60.  I find that based on what the defendants said in their respective video recorded interviews, they were each recruited by ‘joey’ to come to Hong Kong to handle drugs.

61.  It is obvious that they were foot soldiers recruited by the syndicate behind to come to Hong Kong to do the dirty work, knowing that they are dispensable should they be apprehended. As would usually be the case, the defendants would not be told much about the operation so as to avoid them exposing those higher up in the chain of command.

62.  Although D1 and D2 each rented a place in their name for the storage and handling of the drugs with money given to them by others and each had moved drugs from one address to the other, and D2 had affixed new labels to the bottles, I find that their roles can still properly be labelled as that of storekeepers.

63.  Since it is D3’s own confession that he was to take over from D2, his role would have been the same.

Where in the tariff band?

64.  Based on the above analysis, an arithmetical application of the tariff sentence should be adopted, leading to a starting point of 26 years and 11 months’ imprisonment, for 6,468.8g of cocaine.

AGGRAVATING FACTORS

Entering Hong Kong to commit criminal offences

65.  All 3 defendants are Malaysian nationals who came to Hong Kong to commit crimes for rewards.

66.  In the case of R v Oscar C Ambas and another, CACC 441/1994, the Court of Appeal stated that “…Foreigners who make lightning forays into Hong Kong with the object of making quick profits from criminal ventures must be discouraged[5].”

67.  For this aggravating factor, I will enhance the sentence on count 1 on D1, D2 and D3 each by 7 months, taking the starting point to 27 years and 6 months’ imprisonment.

MITIGATING FACTORS

D1’s Assistance to authorities

68.  After her arrest and during remand, D1 made two non-prejudicial statements and indicated that she was willing to give evidence against D3 at his trial. Her offer was accepted and would have been called as a prosecution witness had D3 not decided to plead guilty to count 1.

69.  Ms. Yip for D1 relies on the case of HKSAR v Cheng WeiGuang CACC 97/2017 to support her submission that, where a defendant is willing to give evidence against other offenders, but for some reason was not eventually called into the witness box, the usual discount granted under this mitigating factor is that of a 40-45% discount on the starting point.

70.  In D1’s situation, although it was not her information that led to the apprehension of D3, her willingness to give evidence against D3 might very well have been one of the factors influencing D3’s decision to plead guilty.  I find that a proper discount under the circumstances would be 40%.

71.  The sentence after plea is, therefore, 16 years and 6 months’ imprisonment for D1 on Count 1.

D2’s sentence on Count 1

72.  Given that D2 played a similar role and is equally culpable as D1 in her role as a storekeeper, I adopt the same starting point for the cocaine involved, which is then enhanced to the same extent for the aggravating factor of D2 coming to Hong Kong specifically to commit the offence, resulting in a starting point of 27 years and 6 months’ imprisonment.

73.  For D2’s diligence shown during her remand, as well as for her participation in Father Wotherspoon’s anti-drug campaign both here and, through her mother, in Malaysia, I will grant D2 a reduction in sentence of 6 months, leading to an adjusted starting point of 27 years’ imprisonment.

74.  Since D2 had also agreed to given evidence on behalf of the prosecution against D3, as confirmed by the prosecution in their letter dated 6^th December 2021, for the same reasons given in relation to D1, I will also grant a 40% discount for D2’s assistance to the authorities, resulting in a sentence of 16 years and 2 months’ imprisonment on Count 1 for D2.

D3

75.  In relation to D3, he played a similar role as the intended replacement storekeeper, and was therefore similarly culpable to D1 and D2.  He also came to Hong Kong specifically to commit the offence. There are no mitigating factors other than his plea of guilty. I adopt the same post-enhancement starting point of 27 years 6 months’ imprisonment against D3 on count 1.

76.  Since D3 first indicated his plea after the trial dates had been fixed, in accordance with the principles set out in the case of HKSAR v Ngo Van Nam, CACC 418/2014, he will not receive the full one-third discount.

77.  Taking into consideration the fact that the indication came only 51 days before the commencement of trial, by which point much time and effort would already had been spent on getting his case ready for trial, I find that a proper discount for his guilty plea is that of 20%.

78.  D3 is, therefore, sentenced to 22 years’ imprisonment on Count 1 (The only count he faces in these proceedings).

Count 2: D1 only

79.  In relation to the 236 grammes of ketamine found in Room B4, the applicable tariff is the “50 to 300 grammes : 6 to 9 years’ imprisonment” band[6].

D1’s culpability on count 2

80.  D1’s intention was to sell the dangerous drugs as instructed by ‘Joey’.  D1 intended to deal directly in the drugs, to sell them to someone in order to earn a monetary reward for herself. Her role in relation to the Ketamine was ‘the actual (or direct)  trafficker’[7], with a higher culpability than that of a storekeeper or courier.

Where in the tariff band?

81.  An arithmetical application of the tariff sentence would lead to the starting point of 8 years and 3 months’ imprisonment. This is adjusted upwards by 3 months to reflect the higher culpability of an actual trafficker, resulting in 8 years 6 months’ imprisonment.

AGGRAVATING FACTORS

Entering Hong Kong to commit criminal offences

82.  There is no evidence to suggest that D1 had brought in the Ketamine from overseas.  It is, however, her own admission that she came to Hong Kong intending to sell the drugs for a reward from ‘big sister’.  As with count 1, someone entering Hong Kong with the intention to commit a serious offence here is an aggravating factor.

83.  For this, I enhance the starting point by 6 months to that of 9 years’ imprisonment.

MITIGATING FACTORS

84.  While D1’s non-prejudicial statements might have led to D3’s plea on count 1, this mitigating factor of assistance to authorities does not apply to D1’s criminal act in count 2, where she is the sole defendant.

85.  Having said that, I find that the fact that it was D1 who had brought the Police to the unit where the Ketamine in count 2 were found would amount to a mitigating factor, and for that I would reduce her sentence by 3 months, leading to a sentence of 8 years and 9 months’ imprisonment.

86.  D1 is granted the full 1/3 discount for her guilty plea to count 2 and the discounted sentence is 5 years 10 months’ imprisonment.

TOTALITY

87.  The factual matrix of counts 1 and 2 are intertwined. D1 received instructions from the same person to traffic in the drugs in both counts. She came to Hong Kong with the intention to commit the two offences while she was here. Some of the ‘wine’ had been stored in Room B4, and were moved to Room 7, while the ketamine was stored in Room B4.

88.  Applying the conversion test, 58g of cocaine would have attracted a starting point of 8 years 3 months, which is the tariff starting point for 236g of ketamine.

89.  When the converted cocaine is added to the original quantity, the tariff starting point would still be 26 years and 11 months, the same as that of the original 6468g of cocaine.

90.  Had D1 been charged with one single count for all the drugs, a combined approach would have led to a similar sentence once the aggravating and mitigating factors are taken into consideration.

91.  Be that as it may, the fact remains that D1 had trafficked two different types of drugs at two different locations, which ought to be reflected in the final sentence. Furthermore, had D1 been charged with the trafficking of the cocaine and the ketamine in the same count, the sentence would have been enhanced for there being multiple drugs.

92.  Taking a step back, I will order 4 months of the sentence in count 2 be served consecutively to the sentence in count 1, the balance concurrently, resulting in a final sentence of 16 years and 10 months’ imprisonment after plea for D1.