Their Respective Charges: 317/2023
Count 1 against the 1st defendant, So
So has pleaded guilty to conspiracy to traffic in a dangerous drug, namely, cocaine with Fu, the defendant of 316/2023, and other persons unknown, between two dates, 1 and 2 October 2021 in Hong Kong.
Count 2 against the 2nd defendant only, Lam
Lam has pleaded guilty to conspiracy to traffic in a dangerous drug, namely, cocaine and cannabis in a herbal form with Fu, the defendant of 316/2023, and other persons unknown between 22 September and 3 October 2021, both dates inclusive, in Hong Kong.
The Respective Charges of 316/2023
Count 1 against the defendant, Fu
Fu now pleads guilty to conspiracy to traffic in a dangerous drug, namely, cocaine with So and Lam and other persons unknown between 1 and 2 October 2021 in Hong Kong.
Count 2
Fu now pleads guilty to trafficking in dangerous drugs on 3 October 2021 in Room F, 3rd Floor, 59 Prince Edward Road West, Mongkok, Hong Kong, he unlawfully trafficked in 7.2 grammes of a solid containing 6.19 grammes of cocaine and 6.12 grammes of cannabis in herbal form.
Let me deal with the facts of both cases together.
On 2 October 2021, at around 1.30 am, police officers patrolling near the Kwai Shing Circuit stopped and searched a taxi carrying the 1st defendant, So, as a passenger. She was 15 years old at the time. She had in her bag 87 plastic bags containing a total of 23.05 grammes of a solid containing a total of 20.44 grammes of cocaine. She also had HK$14,840 in cash and two mobile phones.
Under caution at the scene, So admitted delivering drugs for money. She made a further statement under caution and elaborated. She was living with a friend from September 2021 and not at home. This friend’s mother offered her a job to make easy money, delivering drugs as instructed for
$1,000 a day. She was added to a WhatsApp group and
received instructions through this group. She would receive phone calls or messages from drug suppliers to tell her where to pick up the drugs.
Earlier that day or the day before on 1 October she received two messages in the afternoon from one such supplier. The defendant, Fu, instructed her to meet him at 59 Prince Edward Road West where he was to replenish her drug supply for her to make further deliveries to customers.
She said she met him in a taxi at about 7 pm at that location where he boarded and joined her.
He handed her a bag which she checked and counted, she said contained a total of 95 bags of cocaine. They drove around for a few moments whilst she counted and then he got out. She then proceeded to make deliveries as instructed all over Kowloon and New Territories. The money seized from her were payments from customers paid upon delivery.
Fu was traced through his messages to her and on the following day, at about 2.50 pm on 3 October, the police, having obtained a search warrant, located and arrested Fu at home in Aberdeen. They seized the mobile with which he had communicated with So and a bunch of keys.
Apart from messages with So, the police found a WhatsApp group in Fu’s mobile showing members of the WhatsApp group sending out instructions of customers, their drug order, the price to pay and location of delivery. It would appear that he had made deliveries as well. His first message appears on this WhatsApp group on 1 October 2021, two days before his arrest.
After his arrest, Fu revealed a drug storage premises in Mongkok to the police. The police obtained a search warrant and visited that location. They used keys found on Fu to gain access to the premises. It was a subdivided unit with a toilet, kitchen and a bed. They searched the premises and found 41 plastic bags containing a total of 7.2 grammes of a solid containing 6.19 grammes of cocaine and two plastic bags containing a total of 6.12 grammes of cannabis in herbal form.
They also found three digital scales and 849 empty transparent resealable plastic bags. They found a tenancy agreement dated 23 September 2021 signed by Fu and the 2nd defendant, Lam, of 317/2023.
An estate agent acting for the landlord of that subdivided unit confirmed that Fu and Lam both signed the tenancy agreement. Whilst the police were searching this unit, the 2nd defendant, Lam, was found acting suspiciously on the staircase outside those premises by police officers. When
questioned, he said he intended to go into those premises. He was searched and police found keys to the premises as well as five packets in his backpack containing a total of 118 grammes of a solid containing 103 grammes of cocaine.
Lam was arrested and under caution admitted he had been instructed by a person named “Siu Wan” at 5.30 earlier that day to collect this cocaine from a place near Tai Wai MTR Station. Then he was to take it back to the subdivided unit in Mongkok and repackage the drugs into smaller bags. He told the police that both he and Fu met this Siu Wan who offered them both a way to make easy money. He instructed them to rent the subdivided unit and provided money to buy digital scales and plastic bags. Both these defendants did as instructed. He was on his way to the flat when he was arrested by the police.
Mitigation
After the trial for Fu had been set down, So gave a statement to the police, implicating Fu and agreeing to give evidence against him in his trial. It was this new development that prompted Fu to change his plea and indicate a plea of guilty to all charges.
The 1st defendant of 317/2023, So, was 15 at the time of her arrest and is now 19 years old. I have heard full mitigation on her behalf from Ms Tso. Despite her young age, she does not have a clear record. In June 2018, she was given a police superintendent’s caution for the offences of common assault and theft. In November 2018, she was sentenced to 24 months’ probation for the offences of wounding with intent to do grievous bodily harm and criminal damage. That probation order was subsequently extended for a further 6 months which would indicate trouble from her during the probation period and a breach of that probation.
I have received a letter in mitigation and evidence of her further recent vocational training to set herself up in employment in the future. I have been told she had an argument with her mother a month or so before her arrest and had moved in with a friend and her family. It was her friend’s mother that got her involved with this drug syndicate offering her easy money to deliver drugs around Hong Kong as instructed.
I have been urged to consider increasing her one-third discount for her offer to give evidence against her co-accused and her statement to the police implicating him. Having read the statement, I am sure if this matter had gone to trial, she would have been prepared to give evidence for the prosecution.
The 2nd defendant of 317/2023, Lam, was 18 at the time of these offences and still is a student in a vocational education course. He had a clear record at the time of his arrest. I have received many mitigation letters from not only the defendant himself expressing remorse but his supportive father, uncle, aunt and social workers. All ask for leniency and truly believe this defendant when he says he has learnt his lesson and will not re-offend.
Fu of 316/2023 was also 18 at the time of these offences. Fu was also still a student and I granted him bail to give him a chance to complete his HKDSE examinations and support his mother whilst she received chemotherapy treatment for cancer. I have heard full mitigation on his behalf from Mr Tsui. He too had a clear record at the time of his arrest.
I have received a letter from this defendant expressing genuine remorse and regret for being greedy, foolish, led astray and disappointing his parents. I have a letter from his mother who accepts he must bear responsibility for his mistakes but sees the good in him. I have also a letter from a social worker.
All three defence counsel have said all they could possibly say in mitigation on behalf of all defendants.
Sentencing
Although all defendants face a conspiracy charge to traffic dangerous drugs, there is quantifiable dangerous drugs in this case to consider for sentencing purposes. Different quantities apply to all three defendants in light of the circumstances and the facts of their arrests as well as admissions.
Since we have a quantifiable amount of cocaine in this case, the guidelines for trafficking cocaine is relevant. The latest Court of Appeal authority relating to guidelines for trafficking cocaine is HKSAR v Huang Ruifang [2025] HKCA 234.
For the 1st defendant, So, I will take into account the drugs found on her in her bag and that was 20.44 grammes of cocaine. Now according to the latest sentencing guidelines, those trafficking in 20.44 grammes of cocaine would attract a mathematical starting point of 5 years and 9 months’ imprisonment.
For the 2nd defendant, Lam, I will take into account the cocaine found on him and the cocaine found in the premises rented by Fu and Lam which totals 109.19 grammes of cocaine. There is 6 grammes of herbal cannabis, which I consider de minimis in the circumstances and therefore ignore it. According to the latest sentencing guidelines, those trafficking in 109.19 grammes of cocaine would attract a mathematical starting point of 9 years and 7 months’ imprisonment.
For Fu, there is 20.44 grammes of cocaine he admits he delivered to So in relation to the 1st count he faces. In relation to the 2nd count, which is not conspiracy but trafficking, there was 6.19 grammes of cocaine found in those rented premises. As far as he is concerned, I can quantify a total of 26.63 grammes of cocaine. According to the latest sentencing guidelines, those trafficking in 26.63 grammes of cocaine would attract a mathematical starting point of 6 years and 3 months’ imprisonment.
I would also take into account the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. That was subsequently considered again in the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
What is relevant in this case and to all defendants is to first identify the applicable guidelines if drugs are quantifiable and identified, as well as the mathematical starting point which I have done.
The next step would be to consider each defendant’s role and culpability based upon the evidence, circumstances of their arrests and their admissions. I accept that all have been recruited to either store, repackage, deliver and collect payment upon delivery of dangerous drugs. All were given instructions via WhatsApp. All were lured into this by the promise of easy money. The conspiracy charges arise from instructions given to the defendants and their subsequent actions and interactions with each other.
I accept that they were acting in roles that were at the bottom of the chain of drug-trafficking activity or syndicates. The conspiracies lasted from between one day and less than two weeks. Having considered the facts and heard mitigation, I intend to take into account the mathematical starting point determined by quantifiable amounts of cocaine even for the conspiracy charges.
I have also considered whether there are any aggravating factors or any exceptional mitigating factors. For Lam and So, they are entitled to the full one-third discount for their pleas of guilty at the earliest opportunity. So went on to assist the police and agreed to be a prosecution witness against Fu. Her statement was very damning evidence against him. Although she did not ultimately need to give evidence during his trial, I have no doubt that she would have done so without reluctance and come up to proof. She is entitled to a further discount for her cooperation and assistance.
Fu did not indicate a plea at the earliest opportunity, but as soon as the additional evidence against him came to light, that is the evidence of his co-conspirator against him, he reconsidered his position and elected to plead guilty. Under such circumstances and considering his mitigation, I am of the view that I can be generous and consider almost a full one-third discount for Fu’s late plea. I also intend to take a global approach and add up the quantifiable cocaine for both charges he faces and apply the applicable guidelines.
Therefore, for 317/2023, Count 1 against the 1st defendant, So, I intend to take a starting point of 5 years and 9 months and I will reduce it to 3 years’ imprisonment. This reflects a discount of about 48 per cent.
Count 2 against the 2nd defendant, Lam. I intend to take a starting point of 9 years and 6 months’ imprisonment and reduce it by 38 months to reflect his plea at the earliest opportunity. Lam is sentenced to 6 years and 4 months’ imprisonment.
For 316/2023, Count 1 against Fu. I repeat, I have added up the quantifiable cocaine for Count 1 to the 6.19 grammes of cocaine for Count 2 and take a global approach to sentencing. I intend to take a starting point of 6 years and 3 months’ imprisonment and I will reduce it by 23 months. This represents a discount of just over 30 per cent. Fu is sentenced to 4 years and 4 months’ imprisonment for Count 1.
For Count 2, I take the same starting point as Count 1 and reduce it by the same discount, 23 months. For Count 2, this defendant is sentenced to 4 years and 4 months’ imprisonment.
For Count 1 and 2, I will order the sentences to run concurrently. Therefore, Fu is sentenced to a total of 4 years and 4 months’ imprisonment.
I repeat:-
So is sentenced to 3 years’ imprisonment.
Lam is sentenced to 6 years and 4 months’ imprisonment.
Fu is sentenced to a total of 4 years and 4 months’ imprisonment.