COURT: There are two cases before me today which involve the same offence of trafficking in dangerous drugs. They are HCCC 41 and 42/2022. In HCCC 41, the defendant, Tsang Man-hoi William, was convicted after trial of trafficking in dangerous drugs by a jury of majority verdict of six to one. He was found guilty. In respect of HCCC 42/2022, the defendant, Wong Yuk-ming, he had pleaded guilty to the charge before a magistrate on 16 May 2022 and admitted the facts and was committed to the Court of First Instance for sentence. His sentence was adjourned to after the trial of Tsang Man-hoi, who I will refer to now as D1. At that time, D1 was charged with another co-accused called Chan Chak-man, who was D2 for the same offence, after trial, Chan Chak-man, D2, was found not guilty by the jury. So Wong Yuk-ming’s sentence was adjourned after trial of D1.
I am now sentencing them both together as they concern the same charge and similar facts involved.
Let me just turn to the charge itself. Wong Yuk-ming pleaded guilty to the same charge as D1 was convicted of, which was that between 9 April 2020 and 13 April 2020, both dates inclusive, they unlawfully trafficked in a dangerous drug, namely, 502,977 grammes of cannabis in herbal form. The facts can be simply stated in that the cannabis in herbal form, which I will refer to as the dangerous drugs, was imported in a container from Canada to Hong Kong and the drugs were found and seized at D1’s container yard at Skye Parking, which was rented under D1’s company name known as Hyaee Trading Company.
The value of the drugs if they were to be sold at street value in April 2020 amounted to $110,151,963.
The drugs were concealed inside bales of plastic waste which were compressed. When the plastic bales were opened, the cannabis was found packaged inside these bales. The container shipped from Canada arrived in Hong Kong on 5 April at the Kwai Chung Container Terminal. The consignee of the container was a company by the name of “Fango Trading and Logistics Company Limited”, whom I will refer to now as Fango. Fango was incorporated in Hong Kong on 24 January 2018. It was dissolved by striking off on 30 August 2019.
Four days after the arrival of this container, on 9 April, at about 1.30 pm, D1 went to the Maersk office in Kwai Chung Container Terminal. He paid $3,655 for the release of the container. Whilst there at the container terminal, he produced a chop, a company chop, in the name of Fango and signed on the arrival notice. Shortly after obtaining the release documents for the container, arrangements were made by D1 for the container to be collected and towed away from Kwai Chung. The container was eventually towed to D1’s container yard and arrived there on 12 April 2020.
In the meantime, on 12 April, at about 9 am, police surveillance officers kept observation of D1’s container yard from a rooftop nearby as it was suspected this container contained dangerous drugs. The surveillance officers observed D1 and another male unloading the bales from the Canada container. D1 operated a forklift while the other male unloaded pallets of bales from the Canada container. The unloading of the containers commenced shortly before 1 pm on 12 April and D1 and the other male then completed the unloading some 10-odd hours later. It was at about 2.30 pm that another team of police officers from the Narcotics Bureau entered into D1’s container yard and intercepted D1 and the original D2. They were questioned.
At about 4 am, sounds were heard and light was seen coming from a container at D1’s container yard. The drugs container was locked with a padlock. D1 had informed the police officers that he did not have keys for the padlock of the container. The officers therefore cut open the padlock. Found inside this container was the defendant, Wong Yuk-ming, in case number HCCC 42.
After a brief search, the police officers found eight cardboard boxes and inside the cardboard boxes were a total of 171 packets of dangerous drugs. Inside the container was also a pile of paper boards which were cardboards which were stacked up and had not yet been made into cardboard boxes. There were a further five pallets inside that container of bales and after search, dismantling the bales, more dangerous drugs were found.
It was the 1st defendant’s case at trial in his VRI that he had locked Wong Yuk-ming into the container as Wong Yuk-ming had told him he was the owner of the goods and wanted to sleep in the container. He therefore locked Wong Yuk-ming inside. However, after locking him in, he had dropped the key and could not find it.
The other bales which were unloaded from the Canada container was found placed on the ground on the outside of other containers on D1’s container yard and including those bales, the total amount of drugs as stated in the charge was found.
On the evidence before this court at the trial of D1 and the original D2, I am satisfied from the emails that it was D1 who had imported these drugs from Canada. I am satisfied that the emails as is shown in D1’s telephones were bogus and were fake emails. Those emails allegedly employing D1 to devan the containers came only after D1 had actually gone to Maersk to have the Canada container released and after he produced the Fango stamp. I therefore wholly reject Mr Hui’s submission that D1 was employed by Fango to devan this container and I find that he was the person who knowingly imported these drugs from Canada.
As regards Wong Yuk-ming, he has admitted the Summary of Facts that was read to him. In the facts, it is clear he has admitted when he was found inside the container, locked in the container with the drugs, that he was unpacking the drugs from the compressed bales of waste and taking out the cannabis to be further placed in the carton boxes.
Wong Yuk-ming is a foreign national who is a Canadian national. It is admitted in the Summary of Facts that he arrived in Hong Kong from Canada on 15 March 2020 and had come here to unwrap or unpack the drugs from the plastic bales of waste. He knew when he was in Canada that the cannabis was coming to Hong Kong. He had been recruited by someone he calls as “Fat Guy” in Canada for this job. He believed there would be a reward when he returned to Canada.
He admitted that in the afternoon on 12 April 2020, he received a call to go to Skye Parking Lot to work at night. So at about 10 to 11 pm, he arrived at Skye Parking, found the container and went into the container containing some bales of waste and there were already unused carton boxes in the container. He therefore opened the plastic waste, took the bags of herbal cannabis out and put them into the carton boxes.
He was shown images on his mobile phone in his second video-recorded interview and those images were of plastic wastes and bag of herbal cannabis similar to those found in this case. However, those photos were dated January and February 2020. He explained that those photos were sent to him by others for him to have a look at the samples first as the cannabis would be coming to Hong Kong. In his video-recorded interview, second VRI, he says that when he arrived at Skye Parking Lot, he saw two other persons using a lift truck to load plastic wastes onto another vehicle. That other person would have at least had included D1 as can be concluded from the evidence at trial.
Mr Cheng Huan and Mr Dick Wong are the counsel who have mitigated on behalf of the defendant, Wong Yuk-ming, and Mr William Hui and Ms Wannie Chung are the counsel who have mitigated for D1.
I have taken into account all they have had to say. It is admitted by both Mr Cheng Huan and Mr Hui that the amount of drugs involved in this case is extremely large and that the guideline case for trafficking in these drugs is the case of the R v Tuen Shui Ming and Another [1995] 2 HKCLR 129. The recent case of HKSAR v Nguyen Thang Loi and Another [2023] HKCA 103 guidelines for trafficking in herbal cannabis and cannabis resin are guidelines set down after these two defendants’ commission of the offence and they therefore do not apply to the present case and the sentence for these two defendants must be based on the Tuen Shui Ming guidelines.
The other matter which is agreed amongst counsel is that in both cases, there is an international element involved, the only issue here is the term to which the sentence should be enhanced.
Let me just turn now to the background of the 1st defendant. The 1st defendant is 45 years of age and married. He had been running the Hyaee Trading Company for more than 10 years, which is a devanning business, earning approximately $30,000 a month. His wife is a housewife. His daughter is 15 years of age and he is the sole breadwinner for the family. D1 is of clear record.
I am informed that during this hearing, on the third day of trial, D1’s father had passed away on 20 July and he has, of course, been experiencing a very hard time during this trial as a result of the death of his father. His mother is 70 years old and she suffers from serious diabetes and serious degeneration of kidney, depression and is in a wheelchair. She had, as I observed, come into court on some days for the duration of the trial.
As regards Mr Wong Yuk-ming, he was born in China, but is now a Canadian citizen, having been educated in China up to junior high and secondary school education in Canada. He has no specific academic qualifications. He is aged 60 and is also a person of clear record. Regarding his occupation, he had worked as a chef and could find casual work occasionally. He is married. His wife is a housewife with no income and he has a daughter aged 17 who is presently still in school. He is a person of clear criminal record.
The sentence for D1 and Wong Yuk-ming will, of course, be different in that Wong Yuk-ming pleaded guilty to this offence whilst D1 was convicted after trial.
Turning to sentence, the maximum sentence on conviction upon indictment for the present offence is that of life imprisonment and a fine of $5 million. As I mentioned, the case of Tuen Shui Ming is the guideline case for trafficking in cannabis resin and in relation to herbal cannabis. The guidelines as set out in Tuen Shui Ming at the highest end of over 9,000 grammes is 4 years upwards. There is no guideline for amounts of over that amount.
In the sentence bundle in HCCC 42, the prosecution have referred the court to two specific cases for very large amounts of herbal cannabis. The first case is Chan Shu Tong [1996] 4 HKC 515. There, the appellant was convicted of trafficking in 792.11 kilogrammes or 792,110 grammes of herbal cannabis. The judge in that case took a starting point of 30 years’ imprisonment and discounted it to come to 18 years for the role that the appellant claimed in trafficking as a storekeeper.
In the case of R v Chong Chak On [1996] 1 HKC 152, the applicant was convicted after trial of one count of trafficking in a dangerous drugs, namely, 388.674 kilogrammes or 388,674 grammes of herbal cannabis, and he was sentenced to 20 years’ imprisonment. For those cases, they were committed before Tuen Shui Ming and Tuen Shui Ming did not apply, but the case of the Attorney General v Chan Chi Man applies, where a defendant was found in possession of over 9,000 grammes, the sentence would be 4 years and upwards.
I have also been provided with my learned brother and sister’s recent cases, that is, HCCC 61/2023, Rong Dafeng, where Deputy High Court Judge Woodcock, on 18 May 2023, sentenced a defendant for 145,421 grammes to 10 years’ imprisonment as a starting point, and the case of HCCC 38/2023, Wong Kin Hung, Deputy High Court Judge Douglas Yau, on 20 July 2023, sentenced the defendant for 109,355 grammes of herbal cannabis, took a notional starting point of 11 years. These cases are not of assistance. My learned brother and sister’s cases are not of assistance to me as they are of much lower quantity, but I accept also that they sentenced the defendant not on the new guidelines of Nguyen Thang Loi but on Tuen Shui Ming.
As mentioned by counsel, the guideline case is that of Tuen Shui Ming. I am assisted by the two cases decided earlier of Chan Shu Tong and Chong Chak On. The amounts in this case fall in the middle of those two cases. Chan Shu Tong was 792,000-odd grammes and Chong Chak On was 388,000-odd grammes. In the present case, there is, 500,000-odd grammes. In those cases, the sentence, as I mentioned, had 30 years’ and 20 years’ starting point.
Taking into account, the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the court laid down guidelines for principles for sentencing the defendants in trafficking in dangerous drugs. Having considered the above two cases of Chan and Chong, I consider the sentence to be imposed after trial is one between 20 and 30 years’ imprisonment. Given the quantity of drugs involved here in this case, I consider a starting point, an appropriate to be one of 22 years’ imprisonment.
Let me now turn to the role of the defendants. In assessing the defendants’ role and culpability on the evidence as before me, I consider Wong Yuk-ming’s role to that of being the lowest rank in the hierarchy, equivalent to that of a courier. His responsibility was to unpack the drugs from the plastic-waste bales.
For D1’s role, he played a much more significant role than Wong and in my view was much higher up in the chain of the hierarchy. He was the importer of the drugs, controller of this operation in organising the container to arrive at his container yard, and was the operator. He, in fact, locked Wong Yuk-ming in the container, who, as it appears, can be inferred from the facts that he knew Wong’s role was there to unpack the drugs inside the container. It would appear that the only reason why he would lock him inside, Wong Yuk-ming, overnight was perhaps because he did not know him or trust him given the value of the drugs.
In those circumstances, I consider the appropriate starting point for D1’s role to be higher than that of Wong Yuk-ming and I adopt a starting point of 23 years for D1.
Both counsel, as I mentioned, admitted there are aggravating features in this case. The aggravating feature is one of the international element. The relevant cases which have been cited are that of HKSAR v SK Wasim [2020] 2 HKLRD 1139 and HKSAR v Fong Yau Heung [2022] HKCA 258.
It is not disputed here, as I mentioned, that there was an international element in that particularly as regards D1’s role, he was the importer of the drugs, knowing that there were drugs in the container from Canada, who went to Maersk for the release order of this container to which eventually this container arrived at his container yard and to which he unpacked and placed the drugs into his own container. I consider, given the huge quantity of drugs involved, that an enhancement on sentence for D1 should be 2 years’ imprisonment, making a notional starting point of 25 years’ imprisonment.
As regards Wong Yuk-ming, it is clear from the facts that he admitted that he was recruited in Canada for the purpose of coming to Hong Kong to unwrap or unpack the drugs. His purpose then of coming to Hong Kong was specifically to commit a crime and therefore warrants an enhancement of sentence. This also is referred to in HKSAR v Montoya Munoz Mauricio, a Columbian national who came to Hong Kong to engage in drug trafficking. For his role, I consider it also to be serious and enhance his sentence by 2 years’ imprisonment.
For Wong Yuk-ming, the notional starting point, had you been convicted after trial, is one of 24 years’ imprisonment. There are no personal mitigating factors, but the strongest and only mitigating factor is your plea of guilty at the earliest opportunity before the magistrate, and for that, of course, you will receive the one-third discount, and you shall be sentenced to 16 years’ imprisonment.
As for D1, I have enhanced your sentence to that of 25 years’ imprisonment. There are no mitigating factors and you shall be sentenced to 25 years’ imprisonment.
Looking at the principle of totality, I stood back and looked at the overall sentence passed in order to ensure that it is fair, just and balanced.
And in all the circumstances, I consider it to be so and it is not out of proportion to your overall criminality and particularly to the vast and huge quantity of drugs involved in this case.