COURT: Both defendants were jointly charged with one count of conspiracy to traffic in a dangerous drug, namely on an unknown date between December 2022 and the 27th day of December 2022, in a room in Yau Tong, they conspired to unlawfully traffic in cocaine. They pleaded guilty to the offence on 3 February this year before a magistrate and were committed to the High Court for sentence.
According to the Summary of Facts to which they agreed at the time of their plea, at about 1.20 am on 27 December 2022, the police arrived at Room 606D, Block B, Yau Tong Industrial City in Kwun Tong as a result of a 999 call regarding a dispute. The 1st defendant was the one who opened the door of the room to allow the police entry. The room was about 200 square feet and was vacant with no furniture. Upon search, the police found a paper wrapping containing two plastic bags containing a total of 42 grammes of a solid containing 31.4 grammes of cocaine narcotic. This is Exhibit E1. A plastic recycling bag (Exhibit E2)
containing 99 resealable plastic bags containing 89.866 kilogrammes of an unknown white powder (Exhibit E3) were also found inside the room.
The estimated street value of Exhibit E1, the cocaine found, was $34,818 if in powder form or $43,596 if in crack form.
Upon his arrest and under caution, the 1st defendant stated that an unknown man had passed the cocaine to him at 2nd Floor, Lei Yue Mun Plaza, and he was instructed to take the cocaine to the room. The plastic recycling bag (Exhibit E2) was already there when he arrived and he did not know what was contained in it. Shortly thereafter the police arrived.
In the subsequent video-recorded interviews, the 1st defendant admitted as follows:-
- In the afternoon on 26 December 2022, an acquaintance asked if he was interested in a job to bring a backpack containing baking soda and swapping the baking soda with cocaine stored in a drug distribution centre. The acquaintance said that he would be remunerated afterwards. Because the 1st defendant was indebted so he agreed. The acquaintance also provided him with a prepaid SIM card for contact or for communication purpose.
- On 27 December 2022, he received an anonymous call asking him to go to the Yau Tong MTR station. Upon arrival, an unknown male gave him two keys to the room. Then an anonymous caller also instructed the 1st defendant to go to the room.
- Upon arrival at the room, an anonymous caller asked him to call a number 52297634 to contact an unknown person. He did, and he was instructed to meet up at the Lei Yue Mun Plaza where he received two transparent resealable plastic bags of cocaine from an unknown male at the 2nd floor.
- The 1st defendant returned to the room and reported to his acquaintance. Then he received another anonymous call instructing him to put the drug to the corner of the room and to check the items stored in Exhibit E2. The police arrived at the room about 10 to 15 minutes later.
Upon search, two keys with the label “606D” that were able to access the room were found on the 1st defendant. Police enquiry also revealed that in late December 2022, the 2nd defendant signed a tenancy agreement to rent the room at the monthly rental of $4,800 for a period of two years from 28 December 2022.
Call records showed that the 2nd defendant had called the 1st defendant a total of 19 times from his own registered telephone number between 26 December and 27 December 2022.
Upon his arrest on 29 December 2022, the 2nd defendant admitted under caution that he had rented the room and did not lock it.
At all material times, 1st defendant and the 2nd defendant conspired together to unlawfully traffic in cocaine.
The 1st defendant is 39 years of age. He was 36 years old at the time of the offence. He has studied up to Form 3 level. He was divorced and lived together with his family members. He was unemployed at the time of his arrest. He has a total of three criminal convictions for the offence of gambling in a gambling establishment. He had never been imprisoned for those offences.
In respect of the 2nd defendant, he is now 36 years of age. He was 34 years old at the time of the offence. He was single and worked as a hairdresser. He has attained Form 3 education. He has a total of five criminal convictions including two convictions for the offence of possession of dangerous drug and one conviction for possession of pipe or equipment fit and intended for the consumption of dangerous drug.
I should state here that for the purpose of sentencing, I will disregard the criminal convictions of both the 1st and the 2nd defendants.
In mitigation, counsel for the 1st defendant Mr Chung Boey informed this court that the 1st defendant used to work as a construction site worker earning around $20,000 a month. Starting from 2020, he started to gamble and eventually he owed debts in the region of $300,000. His gambling problem led to the divorce with his wife at the end of 2021. Due to the COVID pandemic, he was not able to secure a steady income.
Counsel said he committed the present offence to earn quick money. Counsel submitted that he was only a cog in the machine and played a very small role in this drug trafficking. He was only following instructions and was arrested soon after he had entered the room for the first time. Counsel said that his role was more like a courier taking the drug from the Lei Yue Mun Plaza back to the room.
In respect of this conspiracy, counsel submitted that it was not a sophisticated one and it was nipped in the bud. Counsel said the defendant pleaded guilty at the earliest opportunity and he had fully co-operated with the police. He also informed this court that the 1st defendant had taken different courses to better equip himself whilst remanded in custody.
Counsel asked this court to give him a discount that is higher than the normal one-third discount for a guilty plea because of his assistance to the prosecution. At first, I was informed that he had named the other persons including the 2nd defendant, at least the telephone number of those persons including that of the 2nd defendant, in his video-recorded interviews.
Then I was told that even though the police did interview him for the purpose of taking a non-prejudicial statement (NPS), no statement was taken because the police decided that he was unable to give any information further to those matters already stated in the video-recorded interviews.
Counsel said the 1st defendant in his video-recorded interviews gave the names and nicknames of the persons involved. He allowed the police to inspect his mobile phone and identified the various phone numbers in his call records in respect of the different persons involved.
Counsel relied on the case of HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. However, that case is in fact distinguishable from the situation of the 1st defendant. In that case, the applicant pleaded guilty to two charges of trafficking in dangerous drugs and one charge of conspiracy to traffic in dangerous drugs. The conspiracy charge involved a higher quantity of drug and was more serious than the other two charges. The police had no knowledge at all. They knew nothing about any conspiracy until the applicant made admissions.
Not only did that applicant pleaded guilty at the first available opportunity, she had also disclosed the circumstances of her involvement in the conspiracy. And she had given three non-prejudicial statements to the police, naming someone as her co-conspirator. She had also provided sufficient information about the co-conspirator so as to enable the police to discover the person who had been connected with another criminal case.
The information provided by the applicant in that case led the police to arrest a person, X. This person jumped police bail before the applicant was able to identify him in an identification parade. However, he was subsequently arrested on the Mainland in respect of a drug matter. This led the Court of Appeal to consider that the applicant’s information about that person “may well be true”. It was under those circumstances that the Court of Appeal considered that the applicant in that case was entitled to a total of 38.5 per cent discount.
However, in the present case, the 1st defendant was found inside the room where the cocaine was seized. Even though the charge now is one of conspiracy to traffic, the factual matrix is similar to that for the offence of trafficking in a dangerous drug. No doubt the 1st defendant would face a charge of trafficking in a dangerous drug if he was not charged with conspiracy.
Given that the period of the conspiracy was so short, that is on an unknown day between December and the 27th day of December in 2022, and the fact that according to the 1st defendant he was not involved until the day before, on the 26th, I am satisfied that even if he was only charged with the offence of trafficking instead of conspiracy, the resultant sentence would be the same or similar. So it is unlike the case of Tsang Ka Wing in which the police had no knowledge at all about the conspiracy and no information, no evidence to lay the more serious charge but for the applicant’s admission.
In any event, Mr Boey informed me because of the telephone number provided by the 1st defendant in his video-recorded interviews, that is the number of 52297634, and his identification of the circumstances of that call, it eventually led to a positive arrest by the police.
The prosecution confirmed that as a result of checking or enquiry of that telephone number, they identified a certain person and eventually, about 152.26 grammes of cocaine was found at that person’s home. That person subsequently pleaded guilty to one charge of trafficking in a dangerous drug and was sentenced to 7 years and 1 month’s imprisonment.
However, I was informed by the prosecution, as confirmed by the defence, that indeed no NPS had actually been taken from the 1st defendant at any time. Despite the fact that the defence had written to the prosecution offering them to interview the 1st defendant, the police had never visited him for the purpose of taking a NPS.
The prosecution also confirmed that the identity of the 2nd defendant was revealed because the 2nd defendant was the registered tenant of the room. The police conducted subsequent enquiry to check the records and the telephone number which led to the 2nd defendant’s arrest. The prosecution informed me that in his video-recorded interviews, the 1st defendant had not provided the telephone number of the 2nd defendant to the police.
I shall now come to the 2nd defendant. In his mitigation, counsel for the 2nd defendant Mr Clement Lau informed this court that he has a long history of mental illness. He first received psychiatric treatment at the age of 11 and there were multiple psychiatric admissions to various hospitals between year 2009 to 2022. I noted from various psychiatric reports that had been submitted by counsel that indeed part of the condition of the 2nd defendant was a result of his own drug abuse. In any event, counsel informed me that he is now clear of the drug usage.
Counsel urged this court to exercise its discretion to give him further discount because of his psychiatric conditions. Counsel also informed me the 2nd defendant had provided a written statement to the police in his attempt to assist the authorities, but it did not result in anything fruitful and it was considered to be not of practical use to the prosecution. Therefore, counsel did not urge for any further discount on behalf of the 2nd defendant because of this matter.
A total of three mitigation letters respectively prepared by the mother, a friend of the 2nd defendant and also by a pastor were submitted to urge for leniency.
In sentencing the two defendants, I did bear in mind the approach laid out in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. According to the revised guideline in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138, the starting point for trafficking between 10 and 50 grammes of cocaine would attract 5 to 8 years’ imprisonment.
So for 31.4 grammes of cocaine narcotics, on a mathematical calculation, the starting point would be one of 6 years and 7 months’ imprisonment. This mathematical starting point is appropriate for persons at the bottom of the drug trafficking hierarchy such as storekeepers and couriers. So in my consideration of the starting point for the offence of this conspiracy, I will take into account that mathematical calculation.
In respect of the 1st defendant’s assistance or the information offered by him in the video-recorded interviews that led to the arrest of one further person for drug trafficking activities, I do bear in mind the principles stated in the case of HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309 in which the Court of Appeal said that a 33.3 to 40 per cent discount range is appropriate for a person who has made a genuine attempt to assist the authorities, his assistance has been helpful but not assessed to be of particularly great value. The court said that there would need to be something quite exceptional to justify awarding a defendant a discount as much as 40 per cent.
Coming back to the sentencing of the 1st defendant. I have taken into account the scale of the operation which I agree was not sophisticated. The period of the conspiracy was short. As far as the 1st defendant is concerned, it is only between 26 December and 27 December. The actions done by the 1st defendant was that he was mainly responsible for taking a quantity of cocaine from the Lei Yue Mun Plaza back to the room. I also take into account the quantity of drug involved in the conspiracy, namely 31.4 grammes of cocaine narcotic. I consider that the appropriate starting point should be 6 years and 7 months’ imprisonment.
In respect of this case, there is no other aggravating feature. However, about the assistance that he had given to the authorities, as I have outlined in detail, indeed it was only a telephone number mentioned in his video-recorded interviews, and he pointed out that it was the caller of that telephone number who had asked him to go to Lei Yue Mun Plaza where he met an unknown person and received Exhibit E1, the drug in question.
The 1st defendant did not give any NPS to the police, nor did the provision of that telephone number or any other information in his video-recorded interviews led to any risk or concern about his own personal safety, or the safety of his family members.
In any event, having considered all the circumstances, I am agreeable to give him a slight further discount for the information provided to the police. So he would be entitled to 36 per cent discount in total including his assistance and also his plea of guilty. The resulting sentence for the 1st defendant is 4 years and 2 months’ imprisonment.
In respect of the 2nd defendant, the evidence revealed that he had made a total of 19 calls between 26 and 27 December 2022 to the 1st defendant. The only reasonable inference is that he made those calls either to give instructions to the 1st defendant or to check his progress so that he could report to the people higher in the hierarchy of the trafficking syndicate. He also hired the room for a period of 2 years, apparently on behalf of the drug trafficking syndicate. He admitted under caution that he had rented the room and he did not lock it, apparently for the purpose of allowing others to use it whenever they wanted. Apparently, his role was slightly more culpable than that of the 1st defendant.
Having considered all the circumstances of the conspiracy, I consider the appropriate starting point for the 2nd defendant will be 6 years and 8 months’ imprisonment.
As counsel rightly conceded, his attempt to assist the authorities was of no practical use. The only valid mitigating factor in my view was his early plea of guilty at the first opportunity. As such, he is entitled to the full one-third discount which reduce the sentence to 4 years and 5 months’ imprisonment.
Counsel also submitted that this court can give him a discretionary reduction of sentence because of his mental condition. While that do not in fact amount to any real mitigation, I would take that into account as a matter of leniency and grant him a further discount of 1 month. So the sentence in respect of the 2nd defendant is 4 years and 4 months’ imprisonment.
This is the ultimate sentence for the 1st defendant, 4 years 2 months, and for the 2nd defendant, 4 years 4 months.