COURT: The defendant, Wong Keat Jeang, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
A photograph depicting a packet of white powder purportedly taken at 1134 hours on 28 April 2019, that is about two hours before the defendant was intercepted by Customs, was found in the camera storage of the mobile phone in the defendant’s possession.
The estimated street value of the dangerous drugs seized was HK$1,001,742. The defendant admitted that at the time he was unlawfully trafficking in the dangerous drugs.
Background and Mitigation
The defendant is a Malaysian male, born in 1993. He is now 26 years of age. He has a clear record, criminal record in Hong Kong. The defendant claimed to have studied up to Secondary Two level in Malaysia. He worked as a part-time salesperson earning 2,000 Malaysia Ringgit, it is about HK$3,800, per month prior to his arrest. The defendant’s father had retired and his mother is a housewife.
In mitigation, defence counsel, Mr Stephen Ma, submitted that the defendant pleaded guilty to the offence, showing he was remorseful. He was 25 years of age at the time of the offence and he offered assistance to the Customs. Mr Ma asked for a 40 per cent discount in the case of the defendant on the basis that the controlled delivery operation lasted for more than 20 hours and the defendant was actively assisting the authority. The defendant had also written to me expressing his remorse and vowed never to return to Hong Kong after his release, adding that he would pursue a course while in prison.
Sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence on the indictment is liable to be fined $5 million and to imprisonment for life. The Court of Appeal in the case of Lau Tak Ming set down guidelines for sentencing traffickers trafficking heroin hydrochloride. For amounts over 600 grammes, they fall into very large quantity category. And in this category, there would be an upward increase from 20 years. In a later case, this is the HKSAR v Abdallah, the Court of Appeal gave further guidelines for the trafficking of heroin over 600 grammes. The quantity involved in this case amounts to 1,140 grammes which falls into the 600 to 1,200 category with a starting point of 20 to 23 years.
I am of the view that in all the circumstances of this case, a starting point of 22 years and 9 months’ imprisonment is appropriate.
In Abdallah, the Court of Appeal also held that if there is an international element in the trafficking, there should be an enhancement of at least 2 years for drugs over 1,000 grammes. I therefore enhance the starting point of 22 years 9 months by 2 years, making an enhanced starting point of 24 years and 9 months which is 297 months.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. The sentence would therefore be 16 years and 6 months.
Now, should there be any further discount? The defendant took part in a controlled delivery which turned out to be unsuccessful. Bearing in mind that it is important to encourage arrested person to render such assistance, a further discount is warranted. This is in the case of HKSAR v Lo Sze Tung Stephanie. As to the percentage to be awarded, I bear in mind what was said in Lo Sze Tung. While a range of 33.3 per cent to 40 per cent allows a court to award a discount to a defendant who had made a genuine but unsuccessful attempt, a 40 per cent discount should be seen as a high water mark for it and there would need to be something quite exceptional about the assistance to justify awarding a discount as much as 40 per cent.
I was referred to the statement of Customs Officer 18111 who made a record of what the defendant did after he was arrested. According to this statement, there were numerous attempts on the part of the defendant to contact the person who was supposed to collect the dangerous drug, someone called Jan Deler. I will call him “JD”. Some of the attempts were successful, some unsuccessful. Even though the defendant showed himself and his passport to JD via WhatsApp video call and sent a copy of his passport photo to JD via WhatsApp, in the end, the operation was still not successful.
I note that during one of the calls, it was the defendant who left a message for JD, saying that he would bring the goods, meaning drugs, back to Macau or to Malaysia should no one come to collect them. Six minutes after that, JD left a message for the defendant, saying that he would arrange for the handover in Macau. The operation failed because the controlled delivery could not take place in Macau. On this point, it is not quite correct to say, as it did in the Admitted Facts, that the operation failed as the other side requested the delivery be carried out in Macau when it was the defendant who first suggested such a course.
As I wish to find out whether the name of JD was saved in the defendant’s contact list and whether it was upon the instructions of Customs officers that the defendant suggested he would take the goods to Macau or Malaysia, I adjourned the case for two days for inquiries to be made. Today, 29 May 2020, I was informed that the name of JD was indeed saved on the contact list of the defendant’s mobile phone and that it was the defendant who using his own initiative, allowed by the Customs officers, told JD about taking the goods to Macau or Malaysia, in other words, that was not done on the instruction of the officers.
Defendant at first, through counsel, disputed that. After a short adjournment, I was informed by counsel that the defendant no longer dispute what the Customs officers had said. Further, the defendant does not wish to have a Newton hearing to resolve this issue. Mr Ma asked me to take into account that the defendant was described as very cooperative by the Customs officers.
According to the Admitted Facts, the defendant told the customs officers under caution that he would hand the packets to someone after receiving a phone call in Hong Kong. He did not tell the officer that that person was someone whose name and telephone number were stored on his mobile phone. Also that after the operation failed because JD wanted to arrange for the handover in Macau after the defendant said that he would bring the goods to Macau or Malaysia, the defendant did not render any further assistance by refusing to say anything during the VRI. Of course, the defendant has the right to remain silent. However, when it comes to my assessment of the assistance rendered, I bear in mind the defendant did not use this opportunity to render further assistance during the VRI.
Having considered all the circumstances, I am far from being satisfied that the defendant should be given such a high discount of 40 per cent. In the absence of why he has suggested to JD that the handover, that he should bring the goods, meaning the dangerous drugs, to Macau and his lack of assistance after the failed operation, I am of the view that this is a case in which I should give no discount for the defendant’s participation of the failed controlled delivery.
In other words, the defendant will be given only the usual one-third discount. For this reason and with the discount, the sentence for the defendant for the trafficking in a dangerous drug is 16 years and 6 months’ imprisonment.