HKSAR v. LAW WING NIN AND OTHERS

HCCC 129/2018

[2018] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 129 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

All three defendants have pleaded guilty in the Magistrates Court to the 1st count of trafficking in a dangerous drug, namely 148,313 grammes of cannabis in herbal form. The 2nd accused has also pleaded guilty to one count of trafficking in a dangerous drug, namely 192 grammes of cannabis in a herbal form.

The facts show that on 5 January 2017, in the morning, police officers saw the 1st defendant near a container office in Yuen Long, New Territories. Police officers approached and intercepted and subdued him, and upon entering the container office, they found the 2nd and the 3rd defendants inside.

The drugs which are the subject matter of Count 1 were found in the container office, in cardboard boxes, apart from one opened packet which was on a table inside the container office, together with scissors, cutters and nylon bags, amongst other things.

The total estimated value of the drugs seized amounted to about HK$48,350,038.

All three defendants were arrested and cautioned and the 1st defendant admitted that the cannabis in the boxes belonged to him. The 2nd defendant said that the 1st defendant would give him $1,500 as reward for helping him pack the cannabis into nylon bags.

The 3rd defendant confessed he would also receive $1,500 for helping pack the cannabis, and that he only realised it was cannabis when he was packing them. Subsequently, in a video‑recorded interview, the 1st defendant admitted that he had recruited the 2nd and 3rd defendants to help him pack these drugs. He claimed that after packaging the cannabis, he would return the cannabis to a person called ‘Ah Lung’ and he would receive $2,000 for each kilogramme of cannabis packed and from that he would pay each of the 2nd and 3rd defendants $1,500 for the day for helping him.

The 2nd defendant admitted that he was the one who telephoned the 3rd defendant to come and help and that apart from helping with packing the cannabis, the 2nd defendant said he was also hired by the 1st defendant to deliver it. A house search was subsequently conducted at the 2nd defendant’s residence and at the 2nd defendant’s home, the drug which is the subject matter of the 2nd count was found, together with an electronic scale.

The estimated street value of this drug amounted to about HK$62,592.

The 2nd defendant admitted under caution that he intended to sell the cannabis in order to earn money.

All three defendants had been committed to this court for sentencing. Now, before proceeding with the sentences for each defendant, I must remark here that all the sentencing authorities and guidelines do date back to 1994 and 1995. Since that time, there have been developments in the scientific research over the area of cannabis, particularly herbal cannabis, and its side effects and these have been frequently monitored by the press. Perhaps it is time, due to developments around the world, for the Court of Appeal to reconsider guidelines for trafficking in herbal cannabis, herbal resin and herbal oil, cannabis oil.

The situation will have to be explored with sufficient proper medical evidence which I am unable to do so here. So in considering the sentence for the defendants, I am aided by the cases submitted by the prosecution, Ms Yip and also Mr Yuen. Of course, the main case on the tariff for sentencing in cannabis resin is from the Attorney General v Chan Chi Man [1987] HKLR 221. In the Attorney General v Tuen Shui Ming and Anor [1995] 2 HKC 798, the Court of Appeal felt that there was no need to recast to the guideline sentences suggested in Chan Chi Man’s case, however, they did note that because the guideline sentence was for cannabis resin, if a judge was to sentence for herbal cannabis and cannabis oil, the sentencing judge will have to tinker with the suggested guidelines for cannabis resin.

As Mr Yuen has noted in paragraph 5-533 of Archbold 2018, it was suggested there that unless the quantity is very large, persons with herbal cannabis might be given a discount of up to a year from the cannabis resin tariff. Mr Yuen very helpfully pointed out that in a case in 1994 which is Attorney General v So Chin Chu[1994]1 HKCLR 106, for trafficking in 93 kilogrammes of herbal cannabis, the sentence was increased from 3 years to 6 years on review, and also following that, in the case of Chong Chak On [1995] 2 HKCLR 226, for trafficking in 388.674 kilogrammes of herbal cannabis, a sentence of 20 years after trial was not interfered with by the Court of Appeal.

So against this background I have to consider individual sentences for all three defendants. In the case of the 1st defendant, he is the recruiter of the 2nd and the 3rd defendants and he is also the oldest of the three defendants. He has a clear record and having considered all the circumstances of the case and the previous cases that have been cited to me by counsel, I consider that an appropriate starting point in the case of the 1st defendant is 9 years’ imprisonment, and taking into account his plea at the earliest available opportunity, he is entitled to one‑third off, so he is sentenced to 6 years’ imprisonment.

Now, the 2nd defendant, I have noted that, as I have said, you were recruited by the 1st defendant in this case. There is not much in the background of the 2nd defendant. He is aged 35 and came from a broken family, was unemployed for about 2 months prior to the offence. The 2nd defendant also has a clear record and I am told that, in mitigation, he succumbed to this enterprise because he wanted to help his sister financially and to earn quick money to help her. Presumably, that is why he also succumbed to the temptation of committing the 2nd charge.

So, in those circumstances, I consider, again, that a similar starting point for the 1st charge is 9 years’ imprisonment, reduced to 6 years for his plea. As for the 2nd count, I consider that a starting point of 4 months’ imprisonment would be appropriate, reduced to 1 month. It is slightly more than one-third, but it would be impossible to make it mathematically one-third and it would be very difficult for the correctional services to work it out, if I should calculate it down to the number of days. So I do give him slightly more than one-third in view of this is his first offence as well. All right.

So I will make both sentences concurrent. So the 2nd defendant will go to jail for 6 years.

The 3rd defendant. In the case of the 3rd defendant, I believe what he said upon being arrested and cautioned, that he did not realise that he was being recruited to help pack cannabis until he was packing it. No doubt, as far as the facts are concerned, he did play a very minor role. Although he has a minor conviction for possession of dangerous drugs back in 2004, for which he was fined, he has since then not committed any other offences. He has had a steady job ever since leaving school after Form 4. According to the many letters that have been submitted and read by his counsel, Mr Khattak, it is most impressive that not only his family found him to be hard working, responsible, kind and generous, that even his employer was also of the opinion that he was trustworthy and that he would, the employer, hire him again in the future.

I have no doubt, as Mr Khattak says, that this offence was the defendant’s act of foolishness, as when he found out he was helping to pack cannabis, he should have left the scene. I am impressed by the defendant’s work ethic, because not only did he throw himself into working hard, he also managed to qualify as an electrician, and from the many letters testifying to the fact that he left school early in order to help his siblings continue their education because the family circumstances, the financial circumstances, was not optimum. I am also impressed by the fact that his family, his employer, have all turned up today to support him.

I therefore am going to, in view of the background of this case and the defendant’s own background, temper mercy with justice and I’m going to take the unusual step of sentencing the defendant to 5 years’ imprisonment.

So the sentence for the 3rd defendant will be the same starting point of 9 years, taking one-third off to 6 years, I now further reduce it to 5 years.