HKSAR v. WONG CHUN YIP

DCCC 73/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 73 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of trafficking in a dangerous drug.

2.  They occurred on the same day, on 29 September 2016.  The 1st charge relates to 995 grammes of cannabis in herbal form, the 2nd charge to 48.701 kilogrammes of cannabis in herbal form, and so the total quantity of drug is some 49.696 kilos of cannabis in herbal form.

3.  The defendant has admitted the facts, and these show that on the relevant date, in the afternoon of that day, the defendant was seen to be sitting on a cardboard box outside a shop in Carnarvon Road in Tsim Sha Tsui.  He ran off when the police identified themselves to him, but was eventually intercepted on a corridor on the 12th floor of the building.

4.  A search was conducted.  A plastic packet was found in a rucksack which was in the defendant’s possession, and inside that package were 995 grammes of cannabis in what is described as in a herbal form.

5.  The defendant admits he possessed that cannabis for the purpose of trafficking.  The defendant was arrested, and he said, “The cannabis flowers, that’s a sample,” that was in his rucksack.  There were what he described as a few more boxes inside Shop 1205, and the defendant gave the password to the entrance of that shop, and so the police forthwith went round to that location, where they found a number of boxes, all of them containing cannabis in herbal form packed away, and in total in the location on the 12th floor there was 48.701 kilos of cannabis in herbal form, and the defendant admits again that he possessed that cannabis for the purpose of unlawful trafficking in it.

6.  He said it was a man called “Ah Chung” who got some delivery men to place the dangerous drugs inside that location.

7.  The defendant made more extensive admissions, providing further detail of that and his involvement in these offences, in a video-recorded interview that was conducted later.  He had known “Ah Chung” for some two years and had his mobile phone number.  He had phoned and said that some goods were going to be delivered to the Shop 1205, and the defendant was told to supervise the workers.

8.  The defendant went to the shop and inspected the premises.  The defendant was shown a sample of the cannabis, which he put in the rucksack, and was told that workers would deliver the bulk of the rest of the cannabis to Shop 1205.

9.  One box was too large to be taken into 1205, and the defendant was in fact sitting on the box outside that location.

10.  The defendant was promised to be paid $1,000, and he had in fact received $500 of that by way of a deposit.

11.  There was a CCTV of the building which showed the defendant present, and also some WhatsApp conversations were recorded.

12.  The other fact of relevance is that the estimated street value of all the cannabis possessed by the defendant is $17,443,296.

13.  As far as the defendant’s antecedent background is concerned, he is 28 years old.  He has one previous conviction back on 27 April 2015, when he was convicted of an attempt to commit criminal damage and received a sentence of 6 months’ imprisonment which was suspended for 3 years.  This means that the defendant is and at the time of this offence was currently in breach of the suspension period of that sentence, and the defendant has admitted that this commission of these two offences put him in breach of the suspended sentence which was imposed back in April of 2015.

14.  The defendant has been educated up to Form 5.  He has worked as what is described as a roadworks worker and also a hairdresser.  He is stated to be not a drug addict; not a consumer of drugs.

15.  There is a slightly more detailed account of the defendant’s background found in a background report submitted by the probation services on the defendant, where conclusions are reached about the defendant’s condition.  He is an only child that grew up in what is described as a simple middle-class family, and is described as having a somewhat self-centred character and a bad attendance record.  He did not do well in high school and failed the Hong Kong Certificate of Examination.  He was considered to lack resilience and punctuality, and had a difficult time at work.  His previous criminal offence is said to have taken place during a dispute over social drinking and at a bar, resulting in a suspended sentence.  He has had prolonged sick leave after a foot injury at home.  It said he has admitted committing the crime for easy money to pay for various items.

16.  But the probation officer determines what he calls a blessing in disguise.  There has been some hope for the defendant. During the remand period of 7 months the defendant has already been through, he has made efforts to rebuild his relationship with his parents through regular mailing and visiting.  He has indicated his regret and seen this as a tough lesson.  He is not a drug addict.  He has great shame in the face of members of his own family, who are members of the police force.  He wants to continue working in the hairdressing industry on his release from custody.  He obviously, in this report, shows remorse, and he has a realistic approach to the future, and submissions by his own counsel have been in a realistic fashion, which no doubt comes from instructions from the defendant.  The defendant acknowledges that offences such as this involving such a large amount of drugs will inevitably lead to a substantial term of imprisonment, but he asks for leniency and hopes, on his release, to be able to lead a productive life in the future and be a credit to his family at that point.

17.  Turning to the question of sentencing, I have been referred to the guideline case on sentencing in cannabis cases, which is Attorney-General v Tuen Shui Ming and Another, which dates back as far as [1995] 2 HKC 798, where a set of guidelines are set out.

18.  The relevant quantity for this defendant is over 9,000 grammes - that is, over 9 kilos - where sentences of 4 years and upwards are appropriate.  Of course, there is no specification beyond 9 kilos.  The sentences are at large, but should, in the normal course of events, be over the length of 4 years’ imprisonment.

19.  Also another observation is made in the case. It said that the sentencing court must bear in mind that cannabis resin - the guidelines are for cannabis resin - has an average concentration four times higher than the average found in herbal cannabis, and cannabis oil has an average also about four times higher than the average in cannabis resin, and the court may adjust within a range of the tariff by giving a discount of up to a year for herbal cannabis and increase that length for cannabis oil.  It says any adjustment should be within the range stated by the starting point indicated in the tariff.  It said:

“The tariffs are not straitjackets. The judge must bear the tariff in mind when sentencing, but must, in the outcome, arrive at a sentence which gave proper weight to the facts of the case before him.”

20.  This is a case involving herbal cannabis, so an adjustment needs to be made from the existing guidelines for that fact.

21.  The other fact that the defence say is relevant in respect of sentencing this defendant is that the discovery of the drugs in Room 1205 was largely the result of -- at the time, in any event; the police would no doubt have got there eventually -- but largely at the time as a result of the defendant himself admitting and taking the police to that location, and that, as I said, should be something that is considered in the defendant’s favour when determining the appropriate starting point for sentence.

22.  Obviously each case is largely determined on its own facts.  I have been referred to the sentence in the case of HKSAR v Nguyen Trong Thigh and Nguyen Van Thang HCCC92/1998 - again, some time ago - where Deputy Judge Chung considered a case involving herbal cannabis in quantities that were similar to the quantities involved here; not exactly the same, but similar.  He had two defendants convicted of two offences of trafficking.  In Charge 1 there was 9.6 kilos, while in Charge 2 there was some 51 kilos of drugs concerned.  He also considered the cases of Chan Chi Man and also the case of Tuen Shui Ming, which is the one I have referred to earlier, and also a case called R v Chan Siu Tong.

23.  The court observed there is a range within which a proper starting point can be adopted by the court in imposing sentences for trafficking in over 9 kilos of cannabis.  The proper starting point depends on the circumstances of each case, and the judge observed, and I agree with him here, that it would be wrong to take sentences in previous cases or guideline decisions and then apply a mathematical formula for the amount in case.

24.  In any event, the judge in that case considered the proper starting point for the 9 kilos should be 4 years’ imprisonment, and on the 2nd charge - that is, the 51 kilos - should be 6½ years’ imprisonment, and I believe that case clearly sets out what I would consider the correct range for such a quantity of herbal cannabis, because the judge there was concerned with herbal cannabis.

25.  Applying all these considerations to this defendant, I will now determine what I believe to be the correct starting points, and also discount those for the defendant’s plea of guilty.  The defendant has always admitted his involvement in this offence, so he is entitled to a full one‑third discount on each of the charges.

26.  As far as the 1st charge is concerned, the quantity is less than 1 kilo - 995 grammes of cannabis in herbal form - so in that charge, the range is below 2 kilos, and below 2 kilos, a sentence of up to 6 months, as adjusted for the fact that it is herbal cannabis, can be imposed.

27.  I consider a sentence starting point of 12 months’ imprisonment, reduced to 8 months’ imprisonment, for the 1st charge is appropriate.

28.  On the 2nd charge, I am dealing with the 48‑odd kilos, and having regard to all the facts that have been set out, I consider a starting point of 6 years’ imprisonment is appropriate.  That will be reduced to 4 years’ imprisonment for the defendant’s plea of guilty.

29.  The overall total is some 49 kilos.  I do not believe that adds a lot to the 2nd charge.  What I shall do is order the sentences on both charges to run concurrently.

30.  So the overall sentence on the two charges the defendant faces, after deduction for his plea of guilty as well, is 4 years’ imprisonment.

31.  I do need to consider the suspended sentence the defendant faces.  In the normal course of events, unless it is not in the interests of justice, if the defendant breaches the terms of the suspension of a sentence, then that sentence should be enacted and enacted consecutively to his existing sentence.

32.  Here, there is some 6 months’ imprisonment, suspended for 3 years.  Mr Cheung has observed that this is a somewhat lengthy sentence for a first offender of an offence similar to that where, from what we know, the offence was committed in a social argument in a bar.  But in any event, I do not need to go into that in order to resolve that issue.

33.  The sentence for the offence was on 27 April 2015 and relates to a 2015 case in Kwun Tong.  The suspension was breached on 29 September 2016, so it is some almost one and a half years after the imposition of the sentence, and the suspension period itself is 3 years, which is a lengthy suspension period.  So the defendant had managed to not commit a further offence within a substantial part of that suspension period.  And a second factor to be considered is that the offence is a radically different one than the offence for which the defendant has been convicted in the instant cases.

34.  Having regard to all those factors, I consider that the interests of justice will be served by making no order in respect of the defendant’s suspension of sentence.  It will, of course, continue in force. The defendant is still subject to that, but I will make no order bringing into effect any part of that suspended sentence.

35.  So my conclusion is the overall sentence for this defendant for these offences is one of 4 years’ imprisonment.