The dangerous drugs under Count 1 in which you accept you have attempted to traffic were 18,692 grammes of cocaine hydrochloride. The dangerous drugs under Count 2 in which you trafficked were a further 775.63 grammes of cocaine. That cocaine was wholly unconnected to the 1st count as the dangerous drugs actually imported into Hong Kong had already been secured by Customs and Excise.
The estimated street value of the dangerous drugs you have admitted to attempting to traffic in under Count 1 was HK$28,314,355. That is a huge quantity of drugs. And presumably, an established group of drug traffickers for whom you were working.
The Summary of Facts have been read out to you on a previous occasion and you have confirmed they represented the basis of your plea. But, of course, you also chose to give evidence in trial for your co-defendant Hui Ka-lok. You were made aware that this court would take into account what you had heard in trial, throughout the trial, not just your evidence, when considering the correct sentence. The opportunity, of course, was given to your counsel to address the court on that if they so choose.
You were involved in a scheme to import the dangerous drugs under Count 1 into Hong Kong by secreting them within a cargo container. The drugs were found within the door frame of the container by Customs and Excise before the container was collected by you or your colleagues. An operation was carried out by Customs and Excise in order to make a controlled delivery. The container was taken to a warehouse where you and others were observed to examine the edges of the doors of the container, which were part of the container itself and which had been the part where previously the drugs had been held and then found.
In trial, you admitted that you had not been wholly truthful upon arrest. In your later interviews, you told Customs and Excise that you were asked to devan the container, that you have met Ochoa a couple of days previously and had told him where the container was to be stored and had passed him a key. You had also provided tools for the operation, you said, which you left inside the warehouse. And you had told the driver of the tractor containing the container where to offload it. You said that you had assisted Ochoa when he was cutting open the doors. At that time, you said you did not know what was inside the doors but you were to receive a reward of $10,000 for your part.
In subsequent interviews, you remained silent as is your right. However, in trial you gave evidence to say that you had no prior relationship with Hui Ka-lok. This is patently untrue. You said you took all of your instructions from someone called “A Gor”, although there is no independent evidence of this person or the role he played. You limited your involvement to a matter of weeks and to being unware of the fact that you had attached yourself to dangerous drugs until a week before 27 August 2018.
The drugs which formed the basis of Count 2 were found after your arrest for Count 1 when Customs and Excise searched Room 2 on the 5th floor of Say Hay House, No. 88 Hak Po Street, Mong Kok. That search recovered one plastic bag containing 873 grammes of a solid, which contained 757 grammes of cocaine; 78 plastic bags containing 21.81(grammes?) of a solid containing 18.63 grammes of cocaine. Other items recovered and an in-depth inspection of the room indicated that it was used to divide and to package drugs for onward sale. That suggests you are heavily involved in established drug trafficking. Your role in this operation was therefore a significant one.
You are 35 years of age, single and a holder of a Hong Kong identity card. You lived with your mother and you are her sole care-giver. You have a criminal record. I note that you have previously received a sentence of imprisonment of 4 years for conspiracy to traffic in dangerous drugs in May 2013. This offence took place in August 2018 and so it cannot have been very long after you were released from prison for that sentence.
Ms Chan submits that you are remorseful and that you made admissions upon arrest. But, of course, the court now knows that you accept that you did not tell the truth at that time and by reason of the verdict against Hui Ka-lok, that the jury clearly did not believe the evidence which you gave in trial. That being the case, your actions do not show any remorse. However, I am not going to hold that against you as the sentence you face is a heavy one.
For trafficking in 18,692 grammes of cocaine under the guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for sentence after trial attracts a sentence of 30 years for 15,000 grammes. After which the sentence is at the discretion of the court. On the basis of the current guidelines, if you were a courier, the starting point after trial would be in the order of 31 years and 3 months if the court apply the mathematical model applicable to the guideline sentence for trafficking in 15,000 grammes of dangerous drugs.
However, on your own evidence in trial, on behalf of Hui Ka-lok, you were involved in liaising with the logistics company driver to arrange to accommodate the container. You delivered all of the necessary equipment to the warehouse for Ochoa to use, which clearly indicated something was going to be cut open and welded. You controlled access to the warehouse because you told the court you had the key and not Hui. And someone had to be the person to physically take care of and move the dangerous drugs. If it was not Ochoa, then it must have been you if Hui Ka-lok did not know anything, or you and Hui if you are both fully involved. But your evidence was that he sat outside throughout and you were there to clear up the rubbish as you said.
I take the view that you were commercially involved in this enterprise, albeit at a lower level than Hui. You were a responsible and trusted member of an international drug-trafficking team, not just a courier or a storekeeper. You were left with $28 million’s worth of dangerous drugs in your care. You must have been highly trusted by someone.
Taking into the account the comments of the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019, I therefore consider the appropriate starting point after trial is 32 years and 3 months.
There is a further aggravating factor which is a matter of the importation of these drugs in which you were involved. There is no question but that you involved yourself in an international crime. You assisted in bringing these dangerous drugs into our community. That is an aggravating factor for which you will receive an additional sentence of 2 years. That makes a total sentence of 34 years and 3 months. That is a significant sentence.
If it had not been such a marked sentence, I would have enhanced it for the aggravating factor that you had previously been convicted of trafficking in dangerous drugs and served a sentence of imprisonment very shortly before this offending. I do not believe you told the truth when you testified but I am not going to hold that against you either as I have noted that this is a substantial sentence, even with the one-third discount to which you are entitled.
You will receive a full one-third discount for your plea at the earliest opportunity, which will make the sentence under Count 1 23 years and 2 months.
As for Count 2, under Abdallah, for 775.63 grammes, the starting point after trial is 20 years and 9 months’ imprisonment. They were wholly different drugs and not part of the consignment within the container. In respect of these drugs, you were clearly the person dividing and packaging drugs for onward sale. Once again, you were not simply a courier. You were the distributor and middleman. For that reason and in accordance with HKSAR v Herry Jane Yusuph, I consider there should be an enhancement of that starting point in the order of 1 year, which would make that starting point 21 years and 9 months. No part of that will be aggravated by your previous offending.
Because this was a wholly different enterprise, I am not going to consider a sentence which would have been passed if I had simply added all the drugs together. If I had done so, that may have added about 6 months to the sentence I must pass on Count 1. The sentence under Count 2 must be considered separately, and therefore, it falls to be considered under the totality principle. You will receive a full one-third discount for your plea at the first opportunity. And on Count 2, you will go to prison for 14 years and 6 months.
However, this court must take into consideration the principle of totality for the very long sentence you must serve on the main offence and, therefore, just 2 years of that sentence under Count 2 will be consecutive to the sentence of imprisonment under Count 1. You will therefore go to prison for 25 years and 2 months.