COURT: The two defendants were jointly charged together with others not before the courts with one count of conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and 4(3) and 39 of the Dangerous Drugs Ordinance, Chapter 134 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.
They both pleaded not guilty during the first trial and were convicted. Their appeal was successful and a retrial was ordered and both defendant indicated through their legal representative that they would plead guilty and the case was then brought before this Court and both defendant pleaded guilty before me and admitted to the Summary of Facts and I found both defendants guilty as charged.
Admitted Facts
On 26 April 2015, police ambushed outside Room 337 of the Inn Hotel at Portland Street. Police gained entry into the room when a hotel staff knocked on the door and D1 opened the door. The hotel staff left and the police remained inside the room. Minutes later, D2 entered the room with a room key. Police searched the room and from the hotel safe, they found 10 plastic bags containing dangerous drugs and the electronic scale and piles of empty resealable plastic bags. An ‘Ice’ bottle and a roll of aluminium foil were found outside the safe.
Both defendants were arrested and cautioned. Under caution, D1 said he was helping others to bring stuff to earn money. The ‘Ice’ bottle was for his own use.
D2 under caution said he had come up to return the telephone bill to Ah Ben, meaning D1. The dangerous drugs found inside the safe, after analysis, were found to be a total of 3,518.3 grammes of a crystalline solid containing 3,379.44 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. There is also 11 tablets containing 0.16 grammes of ‘Ice’ of methamphetamine and 2.01 grammes of herbal cannabis. There was a bank book in the name of Pang Sau-lan found on D2’s person.
In a video-recorded interview, D1 stated among other things that he was helping to look after the ‘Ice’ in the hotel. He would receive $1,000 per day as a reward and he recognised the herbal substance being cannabis and the 11 tablets being Ma Ku. He was assigned to look after those inside the hotel room as well. And he was helping someone called Yeung Wai-chung to look after the ‘Ice’ in the hotel room.
Yeung’s trafficking partner was someone named Yee Gor from the Mainland and D1 had met this Yee Gor three to four times. Yeung would import ‘Ice’ from the Mainland to Hong Kong and the ‘Ice’ would then be placed in places like a hotel room and D1 would look after them. Either Yeung or Pang, who is Yee Gor’s girlfriend and a spokesperson for Yee Gor in the trafficking business, would inform D1 who would be purchasing ‘Ice’.
The electronic scale was used to weigh the ‘Ice’ and either Yeung or D1 would perform this job and D1 was responsible for selling the ‘Ice’ but payment for the ‘Ice’ would be made directly to Yeung or to Pang. D1 himself was an abuser of ‘Ice’ and would consume 100 to $200 worth of ‘Ice’ in two to three days. D1 was unemployed at the time.
D2 in the video-recorded interview stated, among other things, that he was returning to the hotel room after helping D1 pay the telephone bill. Before doing that, he had helped D1 move two bags of ‘Ice’ and had passed them to Yeung. He had helped D1 handle the ‘Ice’ because the plastic bag was broken. He said the hotel room was rented by Yeung, D2 had met Yeung once in the Mainland upon D1’s request and he learned from D1 that Yeung was involved in the drug trafficking business.
At the meeting, Pang was also present and on 23 May 2015, Pang gave a bank book to D2 and asked D2 to update the record and D2 said in the VRI that he was unemployed at the time.
Hotel record showed that the room was rented under Yeung’s name from 25 May to 26 May 2015. Yeung was arrested on 2 August 2015. He pleaded guilty to one count of conspiracy to traffic in a dangerous drug with D1, D2 and Pang. Yeung then became a prosecution witness.
Yeung stated that on 25 May 2015, he went to Shenzhen to meet Pang. D1 and D2 were also present. Pang hid the dangerous drug in Yeung’s wheelchair. When Yeung returned to Hong Kong, he rented Room 3007 of the Inn Hotel. He was responsible for bringing the ‘Ice’ from Shenzhen to Hong Kong and D1 was responsible for the repacking.
Both defendants admitted that on or about 25 May 2015, they conspired with Yeung and Pang to unlawfully traffic in ‘Ice’. So those were the facts admitted by both defendants.
Background and Mitigation
D1 is now 31 years of age. He was a kitchen assistant earning about $8,000 per month, unemployed at the time of the arrest. He was single and used to live with his parents. D1 had one previous conviction of possession of dangerous drug in 2008 and was sentenced to a Drug Addiction Treatment Centre. D1 pleaded not guilty during the first trial. He was convicted after trial and sentenced to 27 years’ imprisonment.
Mr Alan So, counsel for the 1st defendant, in mitigation submitted D1 pleaded guilty after a retrial was ordered, albeit at a later stage. Mr So urged this Court to give the defendant 25 per cent discount. D1 is remorseful of what he had done to the society. He made a full confession of his crime, the crime he had committed upon arrest on 26 May 2015, and the defendant was himself an abuser of ‘Ice’ and is shameful to his family and friends.
As for the sentencing guideline, Mr So also referred to the case of Tam Yi Chun and Abdallah, submitting that on a mathematical calculation, the starting point would be about 25 years with enhancement for the international element.
For D2. D2 is now 51 years of age. He has two previous convictions for possession of dangerous drug. He and his wife married in 2017 and they had a 3-year-old son. The family resided in a public housing estate. The defendant had been imprisoned shortly after the birth of his son upon conviction in the first trial in September 2018. The defendant’s 72-year-old mother lived with the older sister. The mother had a pacemaker installed for her heart problem. D2 used to give his mother several thousand per month for living expenses.
D2 received education up to Form 4 level and had worked in various jobs, including furniture apprentice, construction site worker, bartender, film projector in cinema, restaurant waiter and mobile phone salesperson. Prior to his imprisonment, he worked as a part-time restaurant waiter earning about $4,000 a month. He also worked as a mobile phone salesperson on a casual basis, earning $4,000 to $5,000 per month. D2’s wife worked as a saleslady earning $11,000 per month.
D2 knew D1 while both were working at a Japanese restaurant and they became friends. A few days before the date of offence, D1 invited D2 to go to Shenzhen for a massage. Afterwards, D1 brought D2 to meet Yeung and Pang at a hotel. There was a discussion about transporting dangerous drugs to Hong Kong. Following the discussion, Yeung brought some dangerous drugs to Hong Kong and the same was delivered to a hotel room rented in the name of Yeung. And during the discussion, there was no mention of what benefit D2 would get out of the dealing. D2 had not received any monetary reward at all.
D2’s counsel, Mr Peter Wong, submitted that the defendant is very remorseful and promised to be law-abiding in the future. D2 regretted that he could not take care of his mother and as for the appropriate sentence, Mr Wong also referred to the case of Tam Yi Chun and the case of Chung Ping Kun and submitted that the enhancement of 2 years for the cross-border trafficking on top of the starting point between 23 to 26 years would be appropriate. Mr Wong also urged this Court to give D2 a 25 per cent discount.
D2’s wife wrote to this Court, saying that D2 was a responsible husband and a good father who took care of the family. She asked for the shortest sentence possible so that D2 can reunite with the family. D2’s mother had also dictated a letter to her granddaughter to this Court asking for leniency. In the eyes of his mother, D2 was a diligent, hardworking person and a filial son. D2’s wife and mother both claimed that D2 was a law-abiding man who would not commit any crime in order to make money but that he acted stupidly in committing the present crime.
Consideration for the Sentence
Although this is a case of conspiracy to trafficking in a dangerous drug, as the actual amount of ‘Ice’ is known here, I will use the appropriate guidelines for the trafficking of ‘Ice’ in my consideration of the appropriate sentence and I will not take into account the small amount of cannabis.
According to the case of Tam Yi Chun, trafficking over 600 grammes of ‘Ice’ the starting point is over 20 years and in the case of Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of ‘Ice’. The ‘Ice’ involved in this case is around 3.38 kilogrammes, so with a starting point of between 23 to 26 years. That is within the band of 1.2 to 4 kilogrammes.
On a mathematical calculation, a starting point of 25 years is appropriate. There is indeed an international element involved as this is a cross-border trafficking which is an aggravating factor. I am of the view that a 2-year enhancement is appropriate, making an enhanced starting point of 27 years.
Although on the Admitted Facts, D1 was more involved in the dangerous drugs trafficking trade when compared to D2. Since they were both involved in the conspiracy to traffic in a dangerous drug on or about 25 May 2015, I will not make any differentiation between the two. Both defendants pleaded guilty prior to the retrial and I will give each of them a 25 per cent discount. So the resulting sentence is one of 20.25 years, which equals to 20 years and 3 months’ imprisonment.
So the actual sentence. For D1, you are sentenced to 20 years and 3 months’ imprisonment. For D2, you are sentenced to 20 years and 3 months’ imprisonment.