COURT: There are a total of four counts in the indictment. The 1st count charged both defendants jointly with trafficking in a dangerous drug. The particulars of which are that both defendants on the 22 March 2022 together with other person or persons unknown unlawfully trafficked 1.734 kilogrammes of a mixture containing 1.441 kilogrammes of heroin hydrochloride.
The 2nd to the 4th counts charged against the 1st defendant (D1) only and alleged against him on the same day, drove dangerously, drove while a concentration of 0.01 microgramme of cocaine per millilitre of blood, as well as wilfully obstruct a number of police officers in the due execution of their duty.
Both defendants entered pleas of guilty to their respective charges on the 26 October 2023 in the Eastern Magistrates’ Court during committal proceedings. They were accordingly committed to the Court of First Instance for sentence.
The Summary of Facts admitted by the defendants are as follows:-
On the morning of 22 March 2022, a team of police officers led by Sergeant 5111 (PW12) mounted an anti-narcotics operation outside a village house at Block 59, No. 8 Wang Lung, Chuen Lung Village, Tsuen Wan (the “Premises”), which was a two-storey house. At all material times, the 2nd defendant (D2) was the sole tenant of a room on the lower storey of the premises.
At about 1110 hours on the same day, PC26295 (PW10) spotted a private car driven by the 1st defendant with registration number UU3541 (the “Private Car”) entering the premises. PW10 saw D2 opening the gate of the premises for the private car to enter.
At about 1142 hours on the same day, PW10 saw D1 leaving the premises by the private car. Having been informed by PW10 of the 1st defendant’s departure, PW12 instructed PC26158 (PW9), who was driving an unmarked police vehicle (V1) with PC27649 (PW13) and PC27933 (PW14) and PC26115 (PW15) on board, to drive V1 to the outside of Chuen Lung Village Office where they would wait for the arrival of the private car.
At about 1147 hours on the same day, when the private car arrived at Choi Lung Restaurant heading towards Chuen Lung Village Office, PW9 drove V1 slowly towards the private car. Seeing the oncoming V1, D1 drove the private car backwards into a lay-by. PW9 continued to drive forward and eventually stopped V1 before the private car. All PW9, PW13, PW14 and PW15 then alighted V1. At this juncture, PW12, who had been conducting surveillance outside Choi Lung Restaurant, joined the other police officers.
PW12 declared his police identity and demanded D1 to alight the private car. PW9, PW13 and PW14 also declared their police identities and warned D1 to alight. Nevertheless, D1 ignored repeated warnings of the police officers and suddenly pulled out the private car which hit V1 and a private car “RU7883” (“V2”) parked in its front. V2 in turn hit on another private car “RF5605” (“V3”) parked behind it. As the private car suddenly accelerated, the front part of the private car hit PW12’s right little finger, while the side mirror of the private car hit PW13’s right thumb.
In an attempt to drive through V1 and V2, which were blocking its way, D1 drove the private car back and forth to bump the vehicles away and eventually managed to drive the private car away through a gap. The private car collided with another private vehicle “UB4719” (“V4”) parked on the road during its flight.
As D1 continued to drive forward at a high speed towards the entrance of Chuen Lung Village, it collided head-on with another private car “DV3348” (“V5”) just entering the village. D1 lost control of the private car which crashed into a kerb and overturned. The private car continued to slide forward after it had overturned, and hit another private car “TB3160” (“V6”) travelling on the road.
At the material time, D1 drove the private car on the road dangerously. As a result of the dangerous driving by D1:
(1) the left side of V1 was seriously damaged, the left and the rear windows of V1 were smashed;
(2) the rear and front bumpers of V2 were damaged;
(3) the rear bumper of V3 was damaged;
(4) the rear bumper of V4 was damaged;
(5) the front part of V5 including its front bumper and front lights, were seriously damaged, the windscreen of V5 was smashed and the vehicle could no longer be operated. The driver of V5 (PW4) was diagnosed as suffering with mild neck tenderness, left wrist tenderness with swelling and limited active range of movement and hand grip power, left thumb flexion pain, as well as lower back mild tenderness. PW4 was admitted to the orthopaedic ward of Yan Chai Hospital for treatment; and
(6) The front part of V6 including its front bumper was seriously damaged.
By refusing to alight, and driving the private car away in spite of the repeated warnings issued by the police, D1 wilfully obstructed police officers, including PW9, PW12, PW13 and PW14 in the due execution of their duty.
After the private car had come to a halt, D1 climbed out from the private car and was subdued by police officers. D1 suffered mild injuries and was subsequently conveyed to Yan Chai Hospital for medical treatment.
At about 1514 hours on the same day, a specimen of blood was taken from D1 by Dr Chan Ka-wing, a medical practitioner of Yan Chai Hospital, for analysis. Upon examination by government chemist, it was confirmed that a concentration of a specified illicit drug, namely 0.01 microgram of cocaine per millilitre of blood, was present in D1’s specimen of blood.
At the material time, D1 drove the private car on a road while a concentration of a specified illicit drug was present in his blood.
At about 1156 hours on 22 March 2022, immediately after D1 had climbed out from the private car, a search of the private car was conducted by PC25440 (PW11) in the presence of D1. PW11 found a “SASA” plastic bag (the “SASA Bag”) inside the private car, in which five bricks of dangerous drugs (the “Drugs”) were found.
The Drugs were subsequently confirmed by government chemist to be totally 1.734 kilogrammes of a mixture containing 1.441 kilogrammes of heroin hydrochloride (a salt of heroin). The estimated street value of the Drugs as of March 2022 was HK$1,786,020.
At about 1210 hours on 22 March 2022, D1 was arrested by PW9. When cautioned at the time of the arrest, D1 stated that the Drugs were heroin which were given to him by D2, who offered him a reward of $7,500 for delivering the Drugs. D1 stated that he attempted to drive the private car away because he did not want to be arrested.
In three cautioned video-recorded interviews conducted on 22 March 2022 and 23 March 2022, D1 stated, inter alia, the following:
(1) D2 was his secondary schoolmate, and he had been communicating with D2 via WhatsApp;
(2) On the night before the arrest, he received WhatsApp messages from D2 who asked if he would like to take up the job of delivering heroin. As he was in need of money for repaying his debts, he agreed to help with the delivery, and he was promised a reward of $7,500 by D2;
(3) He was told by D2 via WhatsApp that altogether five bricks of heroin needed to be delivered. He was asked by D2 to visit the premises on the morning of the following day, ie 22 March 2022, when the Drugs would be passed to him for delivery to another person who would phone him in due course. He was further asked by D2 to buy some cat food and lunchboxes to the premises;
(4) After he had arrived at the premises, D2 led him enter her room where they had meal together. Afterwards, D2 left the room for a while. When D2 returned, she told him that she had already placed a bag containing the Drugs inside the trunk of the private car; and
(5) He remained at the premises until he received a phone call from a person who told him to bring the Drugs to Kwai Chung Container Terminals. He then left the premises by the private car. Before he departed, D2 opened the trunk of the private car and told him that the drugs were contained in the SASA bag. D2 then took the cat food, which he bought for her, from the trunk and returned to the premises.
D1 voluntarily provided the password of his mobile phone to the police. Upon inspection of D1’s mobile phone, the police found WhatsApp messages sent by D2 to D1 recruiting D1 to the job of delivering five bricks of “Sei Jai 四仔” and asking D1 to go the premises on the 22 March 2022.
According to the drug expert of the Narcotics Bureau of the police, “Sei Jai 四仔” is a term commonly used in the illicit drugs subculture in Hong Kong referring to heroin.
The dashcam of the private car was seized by the police. The relevant footage showed that about 1115 hours on 22 March 2022, D2 placed the SASA bag containing the Drugs into the trunk of the private car.
On the afternoon of 22 March 2022, the police went to the premises to look for D2 but found that D2 was missing. Upon a review of the CCTV recordings in the area of Chuen Lung Village, the police discovered that D2 had left the premises at about 1300 hours on 22 March 2022. She had not returned to the premises since then.
On 26 March 2022, the police located D2 in a hotel room at InterContinental Grand Standford Hong Kong Hotel in Tsim Sha Tsui. D2 was arrested by DPC11303 (PW17).
Save admitting that she resided at the premises, and that her phone number was “6077 7515”, D2 refused to answer any other question in the cautioned video-recorded interview.
Both the 1st and the 2nd defendant now accept and admit that at the material time they possessed the Drugs for the purpose of unlawful trafficking. D2 recruited D1 to help deliver the Drugs and placed the SASA bag containing the Drugs into the private car driven by D1. D1 then helped to deliver the Drugs to other people according to D2’s instructions.
On 5 March 2025, the Court of Appeal, in the case of HKSAR v Huang Ruifang, 黃瑞芳, CACC 106/2022, set down new guidelines for sentencing in trafficking in heroin, in particular, for quantity between 500 grammes to 1.5 kilogrammes, the sentence range is 16 to 20 years.
Section 37 subsection (1)(a) of the Road Traffic Ordinance provides that the maximum for dangerous driving is imprisonment for 3 years.
Section 37 subsection (2) and subsection (2)(a) of Road Traffic Ordinance provides that the minimum disqualification is one of 6 months. However, section 37 subsection (2)(d) provides that the maximum term of imprisonment and minimum disqualification are each increased by 50 per cent if the dangerous driving was committed in circumstances of aggravation. It is further provided in section 37 subsection (2)(e) that one of the circumstances of aggravation is any concentration of a specified illicit drug is present in the offender’s blood.
Section 39K of Road Traffic Ordinance provides that driving while any concentration of a specified illicit drug the maximum term of imprisonment is 3 years, and the minimum disqualification provided in subsection (2) and (3) is one of 2 years.
For wilfully obstructing police officer under section 36B of the Offences against the Person Ordinance, the maximum term of imprisonment is one of 2 years.
D1 is now aged 40 years old. He was born in Hong Kong and was educated to Form 5. He is single and was a part-time taxi driver when these offences were committed. He had one previous conviction in connection with infringing copies of copyright works in 2003. It is submitted, on his behalf, that he agreed to deliver the drugs as he need money to pay debts. It is also submitted, on his behalf, that he was not a drug addict and he took cocaine the night before the commission of the offences in order to release his stress.
I will not take into account of his previous conviction, which is nearly 20 years ago when he committed the present offence, and it is not related to dangerous drugs. On the other hand, there is nothing unusual in his background which amounts to any mitigating factor. The only mitigation in his case is his plea of guilty and assistance to police in his non-prejudicial statement.
On 16 May 2023, he gave an NPS against D2. The information provided in the NPS are similar to what he had said in the caution interviews and supported by the WhatsApp messages found in his mobile phone. However, these information have
nothing to do with the arrest nor prosecution of D2 as there are sufficient evidence against D2. As a result, the information he provided only constitutes useful intelligence to the authorities and it is to that extent considered to be of practical use to the authorities.
I noted from the record of proceedings that on 29 June 2023, D2 indicated her plea of guilty while D1 asked for adjournment to negotiate with Department of Justice. 29 June 2023 is the fifth return day.
On 10 August 2023, the sixth return day, the 1st defendant asked for further time to consider his plea as plea bargain with Department of Justice was unsuccessful. D2 maintained her indication of plea of guilty.
On 26 October 2023, the seventh return day, both defendants entered formal pleas of guilty to their respective charges.
In R v Yan Im Kun [1997] 4 HKC 339, Bokhary JA as he then was, said, quote:
“Where there is more than one accused, that each of them should have an incentive to be the first to plead guilty and offer to give evidence against the other or others is a very good thing. Whatever may be said about the rat race, the courts should give criminals every incentive to enter a race to rat, so to speak.”
In D1’s letter to court directly, he said he had written to Department of Justice on two occasions but no reply from Department of Justice. From the record of court proceedings, it seems those acting for D1 had also written to Department of Justice, however I do not have any of those written representations. I do not know what D1 was offering or asking in return for his NPS. I asked Mr Wong, counsel for D1, to take instructions on disclosure of those communications with Department of Justice to me so that I can in a better position to assess the credit that I should give for his assistance to authority. My invitation for disclosure was declined.
In Lo Sze Tung Stephanie, CACC 190/2017, the Court of Appeal said at paragraph 52, quote:
“We should emphasise that it is the responsibility of the defendant’s counsel to place before the judge all the information needed to enable the judge to make an assessment of the assistance...”
In the same paragraph, the Court of Appeal said, quote:
“We cannot emphasise enough that the judge’s assessment depends on what the judge is told by the defendant’s counsel who is under a professional obligation to do all that he can to advance his client’s interests. The less the judge is told the harder it will be for the judge to make an accurate and fair assessment. Counsel must be in possession of all the facts and be in a position to assist the judge in any queries the judge may have.”
Given the limited information I had, I assessed his assistance is one of providing useful intelligence to authorities only. I am of the view that the discount I can give to D1 for his plea and assistance falls within the range of one-third to 40 per cent. Given the assistance only constitutes useful intelligence and had nothing to do with the arrest nor prosecution of D2, I am only persuaded that I should give a discount of slightly more than one-third, and I adopt a 35 per cent.
In HKSAR v Ilmayanti [2019] 4 HKLRD 1, the Court of Appeal gave a discount of 37 per cent to the assistance rendered by the appellants as the true value of the appellants assistance lay in there being able to identify the recruiter so that he can be tracked down through investigation processes.
In HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, the Court of Appeal gave the appellant a discount of around 43.5 per cent for her assistance in not only the apprehension of the co-accused, but also she would have given evidence for the prosecution had her co-accused not pleading guilty.
Mr Wong, in his submission on behalf of the 1st defendant, made no reference to whether D1 was willing to testify for the prosecution had D2 pleaded not guilty. He submitted that the 1st defendant, quote:
“He made a general attempt to assist the authorities. His assistance have been helpful but, for one reason or another, it is not assessed to be of particularly great value.”
In the circumstances of this case, I am of the view that 35 per cent discount for D1’s plea and assistance is appropriate.
On the facts admitted, I found D1’s role is one of a courier. For the quantities of drugs involved, I adopt an initial starting point of 19 years and 9 months. There is no aggravation nor mitigating circumstances. As said above, I will give a 35 per cent discount for your plea and assistance. It came down to 154.05 months and I round it down to 12 years and 10 months.
For the dangerous driving, a number of vehicles were damaged, and two officers and one civilian got injured. It was also committed in circumstances of aggravation. I adopt a starting point of 3 years and 10 months. Giving you 35 per cent discount, and rounding it down, the sentence on the 2nd count is one of 30 months. That is 2 years and 6 months. You are disqualified for 9 months. I also order you to attend and complete a driving improvement course pursuant to section 72A subsection (1)(a) of Road Traffic Ordinance. Hence you are disqualified for 9 months or until you have attended and completed the course, whichever is the later. Furthermore, the disqualification only starts to run after your release from prison.
For the drug driving, I adopt a starting point of 1 year and 8 months in view of the relative small amount of drugs found in your blood. Giving you 35 per cent discount the sentence on this count comes down to 13 months. That is 1 year and 1 month. You are to be disqualified for 2 years and I also, likewise, order you to attend and complete a driving improvement course.
Finally, for the wilful obstruction, I adopt 3 months as the starting point. Giving you 35 per cent discount it comes down to 1.95 months.
As I have already taken into consideration the aggravating circumstances in committing the dangerous driving, I order that that the sentence on the 3rd count is to run concurrently with the 2nd count, that is to say you will go to prison for 2 years and 6 months for both offences, and you are disqualified for 2 years or until you attend and complete a driving improvement course, whichever is the later, and the disqualification starts to run after your release from prison.
However, the sentence on these two offences are to run consecutively to the trafficking in dangerous drugs. That makes a total of 15 years and 4 months. I am of the view that a total of 15 years and 4 months is a sufficient punishment to reflect your culpability on the day in question. Therefore, I order the sentence on the wilful obstruction to run concurrently with the 1st count.
For the avoidance of doubt, the total term of imprisonment I pass on you is one of 15 years and 4 months. In that, 12 years and 10 months for the 1st count. 2 years and 6 months for the 2nd count consecutive to the 1st count; 1 year and 1 month for the 3rd count concurrently with the 1st and the 2nd counts; 1.95 months for the 4th count concurrent with the 1st, 2nd and 3rd counts.
D2 is now 40 years old. She is single and educated up to Form 5. She had a miscarriage in 2021 and, because of COVID, she was unemployed at the time of the offence.
She had a previous conviction for possession of dangerous drugs and was sentenced to 2 years and 6 months by the Court of Appeal. She was convicted in the Court of First Instance on the 15 August 2013. In fact, she was prosecuted for trafficking in about 200 grammes of ketamine but convicted by jury of simple possession.
It was submitted on her behalf that she was asking D1 to return the Drugs to the boss as she wanted to withdraw herself from the joint enterprise of trafficking in dangerous drugs. If this is accepted by the prosecution, or substantiated, I will give her some discount.
Mr Lau, for the prosecution, did not accept and I accordingly invited Mr Lau, for D2, to consider a Newton hearing. My invitation was declined.
In the circumstances, I will not give any credit for her assertion that she was returning the Drugs to the boss. Her role is more than D1 in that she recruited D1 to make the delivery, as well as being the storekeeper of the Drugs in question.
I adopt an initial starting point of 20 years. For her plea, I reduce it to 13 years and 4 months.
She had a previous conviction relating to dangerous drugs and had been to prison for that. Though the previous conviction is some 8½ years ago, I am of the view that the sentence has to be enhanced to deter you from committing dangerous drugs offence. I accordingly enhance the sentence by 6 months. The sentence now is one of 13 years and 10 months.
Mr Lau, on your behalf, asked for a reduction of 3 months on account of your participation in Father Wotherspoon’s programme. I have before me a letter from Father John Wotherspoon certifying D2,
“...has greatly helped our campaign by submitting her complicated and tragic story which we have used and will continue using. Her story describes her story of problems with drugs, her health issues, and how she succumbed to drug trafficking to get quick money. The sad effects her detention have had on her family, her study efforts while in detention, all as a warning to others not to make the same mistakes.”
I have also read her story titled “Radio Silence”.
In HKSAR v Kilima Abubakar Abbas, CACC 143/2016, Lunn VP said in paragraphs 66 and 67, quote:
“However, determining what, if any weight, ought to have been afforded the applicant in sentencing for his participation in Father Wotherspoon’s programme is fraught with considerable difficulties. At most, the applicant contributed to the simple message that Father Wotherspoon’s programme promulgated to Tanzanians, namely that very heavy sentences of imprisonment were to be expected by those who unlawfully trafficked dangerous drugs into Hong Kong. He did not thereby expose himself to any danger. It is simply not known whether the decrease in the arrests in Hong Kong of Tanzanian drug traffickers, to which statistics reference is made in the judgement of McWalters JA, is to be attributed in any way to the programme, let alone to the contribution of the applicant. The courts are ill equipped to make enquiries to make any such determination. To do so exposes the court to the dangers of indulging in speculation. It is said by the Court of Appeal assessing the value, if any, to Hong Kong of an applicant’s participation in Father Wotherspoon’s programme is a matter that the Executive is better equipped to perform.”
Paragraph 67, quote:
“Nevertheless, it lay within the judge’s discretion to afford the applicant a small additional discount in sentence to reflect this aspect of the applicant’s conduct. The judge was entitled to afford the applicant a discount of 3 months’ imprisonment for this factor of mitigation. That level of discount of sentence is to be regarded as the maximum discount to be afforded to an applicant in similar circumstances.”
Macrae VP said in paragraph 91, quote:
“This court, comprising both of my two colleagues on this appeal, has already twice said that post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the Executive. I consider that is right for the reasons they have given and that this court should adhere to its earlier decisions on this matter. Nevertheless, I would still permit sentencing judges a discretion to allow a token discount for this factor. Although such contributions to Father Wotherspoon’s campaign do not amount to either positive good character nor are they readily borne of remorse, it seems to me that it may still be in the public
interest to encourage a prisoner’s efforts in this regard. That assessment must be in the absolute discretion of the court, an exercise with which this court will not lightly interfere, but I cannot for myself envisage any circumstances which might warrant a deduction of more than 3 months for this factor.”
McWalters JA, in paragraph 225 had this to say, quote:
“In my view a court called upon to sentence a drug trafficker who seeks a sentencing discount for this form of assistance should first decide whether the actual assistance provided, over the time it has been provided, enables him to confidently form the view that the defendant has contributed meaningfully to Father Wotherspoon’s campaign. If it is too early for the judge to confidently form such a view then he should leave any sentencing discount to be subsequently assessed by the Executive.”
Paragraph 226:
“If the judge forms the view that the defendant has made a meaningful contribution to Father Wotherspoon’s campaign then he should reward the defendant for the assistance he has provided to date.”
Paragraph 227:
“This will always be a matter of discretion for the sentencing judge. In exercising that discretion the judge will take into account the nature and extent of the applicant’s participation in Father Wotherspoon’s campaign, whether that participation has exposed him, or members of his family in his home country, to any risk of harm and the benefit that has flowed to Hong Kong from the campaign. This is not intended as an exhaustive list of the relevant considerations.”
Unlike the case of Kilima, D2’s participation in Father Wotherspoon’s programme was not aimed at broadcasting abroad with the will to deter people from bringing drugs into Hong Kong from abroad. D2’s story, which I have read, is just like someone expressing her remorse and serves as a general warning to others. I am not persuaded that D2’s participation had contributed meaningfully to Father Wotherspoon’s campaign. I therefore would not accede to Mr Lau’s request of a 3 months’ discount.
For the 1st count, I pass on the 2nd defendant a term of imprisonment for 13 years and 10 months.
For D1, the disqualification that I have earlier ordered “starts to run after your release from prison” is deleted. So you are disqualified for 2 years, or after you have attend and complete a driving improvement course, whichever is the later.