HKSAR v. WONG KIN HUNG

HCCC 38/2023

[2023] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 38 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Mr Lam Tsz Kan, admitted to the summary of facts read out in court and was, on 13 February 2023, committed to the Court of First Instance for sentence.

2.  Particulars of the count are that the defendant on 17 July 2021, at D.D. 116, Lot 4254SA, Tai Kei Leng, Yuen Long, New Territories, together with other person or persons unknown, unlawfully trafficked in a dangerous drug, namely 109.355 kilogrammes of cannabis in herbal form.

SUMMARY OF FACTS

3.  In the early afternoon of 17 July 2021, during an anti-narcotics operation, police officers observed the defendant entering a container at Tai Kei Ling, Yuen Long.  The officers approached the container and banged on its door, warning anyone inside that they should open the door or it will be broken open. When no one answered, the officers broke open the door and found the defendant to be the only person inside.

4.  Police found, among other things, the key to the container, 4 mobile phones and HK$30,010 in the defendant’s shoulder bag.

5.  The following were found inside the container:

(i)  13 bags containing totally 223 plastic packets of herbal cannabis;

(ii)  an electronic scale; and

(iii)  multiple empty resealable plastic bags

6.  The defendant was arrested for the offence of trafficking in a dangerous drug, who said under caution that he got paid for living in the container and watching over the cannabis for someone (“我都係收錢住喺呢個倉幫人睇呢個倉裏面嘅大麻”).

7.  In the subsequent cautioned video-recorded interview, the defendant stated that he knew the drugs were cannabis, that he had resided at the container since 1 July 2021, and that he was paid HK$15,000 per month for the job.

8.  Government chemist confirmed that the total amount of drugs found were 109.355 kilogrammes of cannabis in herbal form, with an estimated street value of HK$22,308,420.00 as at July 2021.

PREVIOUS CONVICTIONS

9.  The defendant has 10 previous convictions from 7 court appearances. The first 2 were for burglary and attempted burglary in 1988, when he was sentenced to 9 months’ imprisonment suspended for 2 years and a fine of $500 respectively. The next 5 were all for gambling when he was fined $25, $75 or $1000.  His most recent convictions were in 2009, when he was sentenced to a total of 4 months’ imprisonment for acting as member of triad society, criminal intimidation and common assault.  None of the convictions are drugs related and given the lapse of time between his last and present conviction, I find that his sentence should not be enhanced on the basis of him being a persistent offender.

BACKGROUND AND MITIGATION

10.  The defendant is 59, married to his 52 years old wife since 1990. They have two sons aged 31 and 32, both married and living separately with their own children.

11.  The defendant came to Hong Kong in 1980, aged 17, from Mainland China after having graduated from primary school.  Since then, he has worked as a construction worker and a driver.  Up until about one year before his arrest he was working as a driver earning about HK$12,000 per month, but he lost this job because of the Covid restrictions in place in Hong Kong at that time.  At the time of his arrest, he was residing in a public housing unit in Tin Shui Wai paying rent of around $3,000 per month.

12.  The defendant’s eldest son wrote in mitigation, describing the defendant as a good father and grandfather, and explaining the difficulties faced by his family as a result of the effect the pandemic had on the economy, suggesting that the defendant committed the offence with his own family in mind. He can see the self-blame and remorse in his father’s eyes and wishes for a light sentence so that he can return to them soon.

13.  Mr Davies stated in his written mitigation that there are no sentencing guidelines for trafficking in such a large quantity of herbal cannabis, that the defendant’s role in the trafficking is that of a storekeeper, and that there are no aggravating features such as there being an international element in this case.

14.  He explained that the defendant committed the crime out of desperation and is deeply remorseful, as reflected in his pleading guilty at the earliest opportunity, and that the defendant has no drug related convictions at all and is highly unlikely to re-offend.  It is his submission that leniency is called for in the circumstances.

15.  The defendant also wrote for leniency, regretting succumbing to the temptation of money and saying that he is remorseful.  He wishes to be back with his family as soon as possible.

SENTENCE

16.  The maximum sentence on conviction upon indictment for the present offence is that of life imprisonment and a fine of $5 million.

17.  In the case of The Queen v Tuen Shui Ming and another [1995] 2 HKCLR 129; CAAR 12/1994, the Court of Appeal in recasting the then sentencing guidelines for trafficking in cannabis resin said the following in relation to herbal cannabis:

“19. … Taking this into account a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should… be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.” (my emphasis)

18.  The recast guidelines are as follows:

“The suggested tariff for possession of cannabis resin for the purpose of unlawful trafficking is:

	(a)	Under 2,000 grammes - Up to 16 months
	(b)	Over 2,000 grammes - 16 to 24 months
	(c)	Over 3,000 grammes - 24 to 36 months
	(d)	Over 6,000 grammes - 36 to 48 months
	(e)	Over 9,000 grammes - 4 years upwards”

19.  In the recent case of HKSAR v Nguyen Thang Loi and another [2023] HKCA 103; CACC 145 and 217/2019, the Court of Appeal laid down new sentencing guidelines for trafficking in herbal cannabis and cannabis resin.  Since these guidelines were set after the defendant’s commission of the offence, they do not apply to the present case and his sentence must still be based on the Tuen Shui-ming guidelines.

20.  Be that as it may, I find it helpful to understand the rationale behind the new guidelines since they provide for the sentencing for much larger quantities of drugs.

21.  The new guidelines are based on the Tuen Shui-ming guidelines, adjusted to reflect the similar THC content between herbal cannabis and cannabis resin, as well as dealing with larger quantities:

“(a)  Under 2,000 grammes - Up to 16 months

(b)  Over 2,000 grammes - 16 to 24 months

(c)  Over 3,000 grammes - 24 to 36 months

(d)  Over 6,000 grammes - 36 to 48 months

(e)  Over 9,000 grammes - 48 to 66 months

(f)  Over 15,000 grammes - 66 to 96 months

(g)  Over 45,000 grammes - 96 to 120 months

(h)  Over 90,000 grammes – 120 months or above.”

22.  In gist, what the Court found was that the THC content in modern day herbal cannabis are higher than at the time of the old guidelines, and are at a similar level when compared to cannabis resin.  It is on this basis that the Court indicated that the new guidelines should apply to herbal cannabis as well as cannabis resin without any reduction previously suggested in Tuen Shui-ming.

23.  Court also found it necessary to extend the bands to cover larger quantities. The sentencing bands from under 2000g to over 6000g are not disturbed, while the over 9000g band is capped at 66 months.  The bands from over 15,000 to over 90,000g are newly set.

24.  In the pre-Nguyen Thang Loi case of HKSAR v Touray Edrisa and another, CACC 124/2010, for trafficking in 30 kg of herbal cannabis, the Court of Appeal approved a starting point of 6 years imprisonment, where the 1^st applicant was found to have played a crucial role in the importation of the cannabis into Hong Kong.

25.  As for the 2^nd applicant who was found to be a mere follower, the Court found that an appropriate starting point was 5 years’ imprisonment.

26.  In the Court of First Instance case of HKSAR v Yeung Yuk-ming, HCCC 255/2018, the defendant pleaded guilty to two counts of trafficking in dangerous drugs. Count 1 involved him trafficking in 30.409 kg of herbal cannabis, and count 2 that of 38g of cocaine.

27.  The learned trial judge referred to the above case of Touray Edrisa and adopted the same 6 year starting point for count 1 given the similar quantity and role of the defendant as an importer.

ADOPTING A STARTING POINT BASED ON APPLICABLE GUIDELINES

28.  For the 109.355 kg of herbal cannabis being trafficked by the defendant in the present case, applying the Tuen Shui-ming guidelines, he would be in the “4 years upwards” imprisonment band.  The quantity of herbal cannabis involved is slightly more than 12 times the 9 kg quantity dealt with in the highest band.

ROLE OF THE DEFENDANT

29.  Based on the facts admitted, I find that the defendant’s role in the trafficking was similar to that of a storekeeper.  He was paid a monthly amount to stay inside the container to keep watch over the drugs.  There is no evidence to suggest that he had taken part in the importation of the drugs, nor that he was one of the masterminds behind the storage of the drugs in the container.

WHAT POINT WITHIN THE TARIFF SENTENCE

30.  Bearing in mind all the circumstances of the case, I find that a starting point of 9 years’ imprisonment would have been appropriate for an equivalent quantity of cannabis resin.

31.  According to Tuen Shui-ming, the one year reduction in sentence based on the lower THC content of herbal cannabis should not apply when a large quantity of herbal cannabis is involved.  109.355 kilogramme is a very large quantity of herbal cannabis.  As such, in accordance with the view of the Court of Appeal, I will adopt the notional starting point of 9 years for the herbal cannabis in this case.

32.  For the sake of comparison, 109.355kg of herbal cannabis would have attracted a notional starting point of 11 years under the latest guidelines.  The 9 years starting point I have adopted is around 22% lower than had the new guidelines been applied.

AGGRAVATING FEATURES

33.  There are no aggravating features to enhance the defendant’s sentence.

MITIGATING FEATURES

34.  It is suggested on the defendant’s behalf that he committed the offence due to financial difficulties.  Mr Davies also pointed out that the defendant had immediately admitted to his involvement and been fully cooperative with the authorities.

35.  I find that committing the offence due to financial need is not a ground of mitigation.  I find that any discount to be given based on his admission and full cooperation with the Police is subsumed in the 1/3 discount granted to him upon his plea of guilty.

36.  There are no other mitigating factors to warrant a reduction in sentence.

CONCLUSION

37.  The defendant is sentenced to 6 years’ imprisonment after granting him the full one-third discount for his guilty plea.