HKSAR v. YU KIN HONG AND ANOTHER

HCCC 26/2022

[2023] HKCFI 2125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 26 OF 2022

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REASONS FOR SENTENCE

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1.  On 19 April 2022, D1 pleaded guilty to 2 counts of trafficking in dangerous drugs contrary to S4(1)  (a)  & (3)  of the Dangerous Drugs Ordinance, Cap 134. Under Count 1, he pleaded guilty to trafficking in 23.9 g of Heroin and under Count 2, to trafficking in 28,962.07 g of Heroin. On the same date, D2 pleaded guilty to Count 2 on the indictment. That is trafficking in 28,962.07 g of Heroin. They have been committed to the Court of First Instance for sentence and have confirmed their pleas before this Court.

Background Facts

2.  On 18 January 2020, the police conducted an anti-dangerous drug operation on 18/F of Block H, Kwong Ning Building, Sha Tin Centre, Wang Pok Street, Sha Tin.  D1 and D2 were seen to exit Flat 18/H and were stopped and searched.  The drugs, which are the subject of Count 1 were recovered from the D1’s trouser pocket along with 2 mobile phones and a key to Flat H.  Upon entry to Flat H, further drugs were recovered from the bedroom and living room as well as metal pots, bicarbonate of soda, phenacetin, a sieve and electronic scale.  Both defendants were arrested, cautioned and subsequently interviewed.

3.  D1 maintained that he had known D2 for 2 to 3 years and that it was D2 who had introduced him to a man known as Tang Wing-cheong.  Cheong had instructed D1 to rent the flat about one year ago, which was to be used to store goods for Cheong.  Two days previously, Cheong had told them both to collect 6 boxes from Discovery Park Shopping Mall in Tsuen Wan.  These boxes were taken to the Flat and found to each contain 48 bottles of capsules.  They had been instructed by Cheong to extract the powder from the capsules and they had done so from 3 of the 6 boxes.  Each box contained approximately 2 kgs of powder.  Some of the drugs recovered from the flat were already there when D1 and D2 returned with the boxes but the other drugs recovered had come from the three boxes they had emptied.  D1 maintained that he was to be paid HK$1,000 for each box but had not yet been paid and that the drugs found on him outside of the flat under Count 1, were to be delivered to a rubbish bin area outside Nam Cheong Station on the instructions of Cheong.  Investigation revealed that D1 had held the tenancy of the flat since mid-2019.

4.  On arrest and caution, D2 stated that he needed money and was packaging and delivering drugs.  Like D1, he said that this was the first time he had been instructed by Cheong to collect boxes from Discovery Park Shopping Mall but he suggested they had collected only 4 boxes not 6 and that they had handled 2 each inside the flat.  4 in total and not 3, as suggested by D1.  Both D1 and D2 had taken photographs of what they were doing on their respective mobile phones.

5.  The retail value of the drugs recovered in January 2020 were HK$28,111,273.  Someone was to make a huge profit but I accept that it was not either D1 or D2.

Antecedents & Mitigation

6.  D1 is now 30 years of age and was educated up to Secondary 3.  He is divorced and has custody of his 5 year old daughter who is currently cared for by his mother.  Mr Wong submits that D1 worked in customer services in HKIA before his arrest and earned HK$13,000-14,000 per month.  He only has one matter known, which is unrelated and some time ago.  Mr Wong submits he is remorseful as indicated in his letter to the Court and those of his friends.

7.  D2 is now 28 years of age.  Also educated up to Secondary 3.  He is married with a 4 year old daughter but is separated from his wife and in the process of divorce.  Like D1, D2 has worked in a number of jobs.  He has been employed as a delivery worker, a receptionist, and was latterly employed as a barber on HK$15,000 per month.  He is a man of previous good character.  Mr Woon submits that D2 left his last employment in September 2019 and had no income thereafter.  By the early part of 2020, D2 needed money to support his family and was offered work by Cheong.  Like D1, he was fully cooperative with the police and is remorseful.

Sentence

8.  The sentencing guidelines for trafficking in Heroin can be found in R v Lau Tak-ming & Others [1990] 2 HKLR 370 and in HKSAR v Abdallah [2009] 2 HKLRD 437.  For trafficking between 4,000 g and 15,000 g, the guideline sentence is one of between 26 to 30 years.  This was a total of 28,962.07 g under Count 2, with an additional 23.9 g in respect of the drugs trafficked by D1 under Count One.  This Count adds nothing to the overall sentence this Court must pass and I will deal with it separately as appropriate but focus primarily upon the sentence under Count 2.  Sentencing for trafficking in 28,962.07 g of Heroin is at the Court’s discretion.

9.  Counsel have provided the court with a number of authorities in which large quantities of drugs are involved.  These range in date from 2009 to 2021, but in recent years the amount of drugs recovered in cases has grown exponentially.  It is clear that even the more humble trafficker is dealing in several kilos of drugs and not several 100 grammes. This was a commercial enterprise.  I take into account the nature of this operation, in which both defendants were heavily involved but neither appear to be the master mind nor the person with the most to gain financially.  But, D1 had rented this flat since 2019, coincidentally the same year he lost his job and has apparently not found another since.  The flat was not used by him to live in but solely as a base for Cheong’s operations.  D2 has not worked since late 2019 either.  But they are not being sentenced for what they may have done previously.  They are being sentenced for what they have agreed they did in January 2020.  Both defendant’s transported and stored Heroin.  They extracted the powder and re-packaged it and they also appear to have been adulterating it if one takes into account the bicarbonate of soda and phenacetin and the purity of the heroin which they say was awaiting pick up.  In accordance with the principles laid out in HKSAR v Herry Jane Yusuph CACC 93/2019, neither defendant were mere couriers.  They were receivers, storekeepers, packagers and to some extent manufacturers, by means of adulteration of the final product.

10.  In all the circumstances, I consider the correct starting point under Count 1 to be that of 6 years imprisonment and under Count 2 to be one of 31 years.  That is a significant sentence but the defendants knew what they were risking when they entered into this offending.  When considering any aggravating features, I am required to take into consideration the principle of totality.  That does not mean that other facts should never be taken into consideration which aggravate that sentence simply because an offender receives a just but lengthy sentence.  I intend to enhance their sentence under Count 2 by 1 year for their role in this matter, making a total overall sentence of 32 years.

11.  D1 will received a deduction of one third for his plea of guilty at the first opportunity.  He faces two counts arising from one series of offending.  He will go to prison for a period of 4 years on Count 1, which involves 23.9 g of Heroin.  On Count 2, involving 28,962.07 g of Heroin, he will go to prison for 21 years 4 months to be served wholly concurrently with Count 1.

12.  D2 will also receive the same starting point under Count 2 of 31 years with one years’ enhancement for his role making 32 years and a full one third discount for his plea of guilty at the first opportunity.  He will go to prison for 21 years 4 months under Count 2.

13.  Order in terms of the application for disposal of exhibits.