HKSAR v. CHEUNG CHI HIN AND ANOTHER

DCCC 697/2021

[2022] HKDC 1110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 697 OF 2021

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REASONS FOR SENTENCE

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The Plea and the Facts

1.  These Defendants pleaded guilty to a charge of Conspiracy to traffic in a dangerous drug which took place between 15^th October 2020 and 29^th October 2020.

2.  The Summary of Facts admitted by them shows that on 26^th October 2020, customs officers detected a suspicious inbound parcel from Canada.  The consignee was marked as Andy Chan with an address at Oi Lok House in Tuen Mun.

3.  Upon inspection of the parcel, a total of 15.8 kilogrammes of suspected dangerous drug was found and was subsequently confirmed by the Government Chemist to be cannabis in herbal form.  The estimated street value of this dangerous drug was HK$3,807,800.

4.  A controlled delivery operation was then carried out on 29^th October 2020 where a customs officer CO 16219 disguised as a postman and delivered the parcel to the above address.  D1 answered and confirmed that he was “Andy Chan” and that he was expecting a parcel with details matching with those prescribed for the abovementioned one.  However, upon checking the HKID card of D1, it appeared to the customs officer that it bore a different name.  D1 claimed that that was because he used the name “Andy Chan” to place the order and confirmed with the customs officer that the parcel belonged to him.  Shortly afterwards, the customs officer revealed his identity and arrested D1 for “trafficking in dangerous drug”.  Under caution, D1 gave an excuse which is totally unrelated to dangerous drug but a name “Shing Shing” who was said to be the one who had asked D1 to use the name “Andy Chan” and to collect the parcel.  In a subsequent cautioned video-recorded interview, D1 denied knowledge as to the content of the parcel.

5.  Upon inspection of D1’s mobile phone, the call records of D1’s mobile phone reveal that between 15^th October 2020 and 29^th October 2020, there were phone call records and Whatsapp call records between D1 and 5934 9950 (under the name “Shing Shing”)  and 9601 6991 (under the name “Ho Nam”, later known to be D2).

6.  Furthermore, the Whatsapp record of D1’s mobile phone involved the following communications: -

(a)  At about 2:39 p.m. on 15^th October 2020, D2 sent a voice message to a Whatsapp chat group “浩南智軒之友” asking if anybody could collect cannabis (大麻)  for “Shing Gor”. D2 claimed that the task would be safe and would come with monetary reward. D1 responded “Me do” in the chat group.

(b)  At about 2:51 pm on 15^th October 2020, D2 asked D1 to send him his address and personal details. D1 then sent the following photos to D2: (1)  a photo of an envelope bearing the Consignee’s address and (2)  a photo of D1’s HKID card. At 2:58 pm, D2 confirmed with D1 that the task would be handled by D1.

(c)  At 4:59 pm on 15^th October 2020, D2 forwarded a text message “Andy Chan” to D1 and said that it was the Consignee of the parcel.

(d)  On 28^th October 2020, a Whatsapp contact named “Shing Shing” sent D1 “Andy Chan”.

(e)  At 4:41 pm on 29^th October 2020, D1 asked “Shing Shing”, “Shing Gor, what is the parcel number?”

7.  Upon further investigations, D2 was arrested and cautioned for “trafficking in dangerous drug”.  Under caution, D2 admitted that, inter alia: -

(a)  D2’s phone number was 9601 6991 and that he did ask in the Whatsapp group “浩南智軒之友” if anyone would collect cannabis;

(b)  D2 explained that he asked the question in the Whatsapp group because his big brother “Jiu Jik” needed someone to collect a parcel for “Shing Gor”;

(c)  D1 subsequently agreed to collect the parcel;

(d)  D1 and D2 did not know the quantity of cannabis contained in the parcel;

(e)  D2 only knew that the parcel will be consigned to D1’s home.

8.  D1 and D2 admitted that they had conspired together with other persons unknown to unlawfully traffic in a dangerous drug, namely the 15.8 kilogrammes of cannabis in herbal form found and seized.

The Mitigations

9.  On behalf of D1, Mr Ah-Weng of Counsel stressed that D1 has a clear record and asked for a lenient sentence.  A set of very helpful written mitigation submissions and materials was presented, and I have considered them in full.

10.  In particular, D1 pleaded guilty at the first opportunity, and he understood that the charge is serious which means that imprisonment is inevitable.  It was stressed that D1 is very remorseful.  It is noted that D1 is now 17 years old and he was only 16 years old at the material times.  Mr Ah-Weng described D1 as clearly immature, and asked me to accept that D1 had severely underestimated the legal consequences.

11.  In mitigation, it was said that D1 was not the mastermind.  His role was closer to a “courier”.  D1 planned to receive the parcel and would merely on pass it to others for insignificant monetary reward.  By using his grandmother’s residential address, D1 was clearly an amateur with a simple mind.  Besides, D1 was not a drug user.  He committed the offence purely for “fast money”.  Prior to the offence, he had not received any money.

12.  It was highlighted that D1 has strong and remarkable family support.  D1 has a solid plan for his future. 

13.  On behalf of D2, Senior Counsel described D2 as young and naive because at the time of the offence, D2 was only 16 years of age and demonstrably, D2 was taken advantage of by some others like “Shing Gor” and “Jiu Jik”. 

14.  In mitigation, it was revealed that D2 first felt curious and enquired with them about the parcel.  Once he realised that the parcel contained dangerous drugs, he was scared and refused to play a part.  However, that “Shing Gor” and “Jiu Jik” exerted pressure on D2 and reminded him that he had already known about the nature of the parcel.  This caused D2 to feel worried about himself and his family.  D2 foolishly felt that he would be in trouble if he did not participate.  Nonetheless, D2 eventually agreed. 

15.  It was stressed that D2 has reflected upon himself during the remand (between 23^rd March 2021 and 23^rd September 2021 until his release on bail granted by the High Court)  and D2 has started his own reform.  Since his release, D2 has devoted himself back to his studies. 

16.  From the mitigation letters, it is revealed that D2 is extremely remorseful.  D2 has strong support from his beloved ones.  One thing that is remarkable is that D2’s girlfriend is currently pregnant.  It is highlighted that this has made D2 realise and treasure the love and care from his family even more and D2 wishes to make a fresh start in life as soon as possible.

The Case Law

17.  The notion of “young age” as a mitigation in the context of drug trafficking was considered by the Court of Appeal in HKSAR v Chan Tsz Tim [2015] 1 HKLRD 853, in which, it was remarked:

“29. Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the “aged”, the “young” or the “crippled” will be encouraged to take part.

30. Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercise great care before committing young offenders to prison.

31. However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it. It is, therefore, not in the interest of the community to sentence even young offenders of serious drug trafficking offences to a training centre.

32. Whilst a Training Centre Order is not a soft option, the period of detention there (an average of 18 months to 2 years)  is certainly shorter than what otherwise would be an appropriate prison sentence. A Training Centre Order does not possess the qualities needed for a deterrent sentence and can certainly be perceived as a lenient sentence for serious drug trafficking offences and can be so described by drug traffickers to entice youngsters to take part. The court must guard against such possibility in the interest of the community” (emphasis added).

18.  It appears to this court that the primary consideration is about the duty to pass a deterrent sentence.  A Training Centre Order does not bear or present this nature.  It seems however that in and only in suitable cases, that is, non-serious drug trafficking cases, the sentencing court still enjoys certain discretion to resort to such sentencing option.  It must be stressed that such scenario would be rare because one could hardly describe a case of drug trafficking being not serious.  It is also noteworthy that the length of a Training Centre Order might come into play should the ultimate sentence of imprisonment become, after taking into account all the aggravating and mitigating factors, comparable such that the Training Centre period does not undermine the necessity of passing both a general and a specific deterrence on the one hand, but represents a punishment of incarnation long enough to reflect the gravity of the offence in a particular case.

19.  Counsel and Senior Counsel for the Defence did helpfully refer me to all factors to be taken into account in their oral submissions.  The ambit and operation of section 109A of the Criminal Procedure Ordinance (Cap 221)  was fully discussed and canvassed.  This court was of the view that the only appropriate sentencing option in the present case is one of imprisonment. 

20.  The sentencing tariff for possession of Cannabis Resin for trafficking for 9kg or more should be 4 years upwards: HKSAR v TUEN Shui-ming, CAAR 12/1994. 

21.  It is noted that the present case concerns Cannabis in herbal form.  In HKSAR v Cheung King Kwong (張勁光), CAAR 12/2018, unreported, at §42, it was held that given Cannabis in herbal form is weaker than Cannabis Resin (because cannabis resin has an average concentration of tetrahydrocannabinol about four times higher than the average found in herbal cannabis), and the Court may consider a lower starting point, but the discount should be no more than a year.

22.  In sentencing the defendants, I have paid particular attention to the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 regarding the sentencing approach for possible different roles played by an accused in a case of multiple offenders. 

23.  In particular, it has to be noted that at paragraph 46, the Court of Appeal said “the court must still retain an important element of discretion in sentencing ……as ……consistent sentencing does not mean identical sentencing.  There will often be differences, however slight, between defendants (and co-defendants)  and the roles they play in different cases, which may be reflected in different sentences by different judges.”

24.  The Court of Appeal remarked “(l)abels (in calling a drug trafficker as ‘courier’ or ‘storekeeper’)  can be easily applied, but they can sometimes be inapposite in conveying the real role of the defendant in question’ at paragraph 50.  The Court of Appeal also indicated an expressed disagreement to a proposition that “once the label ‘courier’ or ‘storekeeper’ can be applied to a defendant, then his precise role in that regard is irrelevant and the courts should avoid being drawn into making nice distinctions between different types of courier or storekeeper” (see para 53).  In other words, the role played by an offender is always part of the circumstances for a sentencing judge to consider[1].

25.  Another aspect is whether the Defendants should be sentenced on the basis of an additional “international element”.

26.  In HKSAR v Ali Qasim CACC332/2018, Macrae VP (giving the Judgment of the Court of Appeal)  remarked that “(f)irstly, the danger of a label such as “international element” is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation)  of dangerous drug.  It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaboration arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong international Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs.  The first defendant can be said to be actually importing dangerous drug into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer.  Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ” (at para 27).  

27.  Before leaving this case, it has to be borne in mind that the distinction between the two scenarios does not suggest that the latter is less serious or culpable[2]. An enhancement should still be imposed to reflect the appropriate degree of international element.  The Court of Appeal also reminded that “a court must be careful when enhancing sentences for various aggravating features that it does not turn an already lengthy and severe sentence into an overbearing and crushing one”[3].

28.  Taking account of all the circumstances in the present case both collectively and individually, for and against the defendants, I am not inclined to draw any distinction between them and I am of the view that the proper starting point should be 42 months’ imprisonment (based on a starting point of 4 years and 3 months according to the tariff, enhanced by 3 months to represent the international element with a reduction of 1 year to reflect the form of the narcotic in question).  The Defendants are entitled to a one-third discount for their guilty plea.  That makes the 42-month term of imprisonment to become one of 28-month.  

29.  Apart from the role played by them in terms of mitigation, I have to consider their mitigations separately and individually.  Yet, there are some common features.  They are:

(a)  Clear record;

(b)  Guilty plea entered at the first opportunity;

(c)  Genuinely remorseful;

(d)  The dangerous drugs in question is cannabis in herbal form;

(e)  Their involvement in the crime is at the lower end;

(f)  Relatively young age (both at 16 at the material time);

(g)  A time lapse between the offence and the present hearing (approx. 2 years); and

(h)  Very strong family support.

30.  Having taken into account all the mitigations and submissions both collectively and individually, and similar to adopting the same starting point, I do not see that passing the same ultimate sentence upon the Defendants would give rise to any disparity in this particular case. 

31.  I shall give credits to all the mitigations and reduce each of their respective sentences by 4 months.

32.  D1 and D2 are sentenced to a term of 24 months’ imprisonment accordingly.