HKSAR v. KO CHUN YIN

DCCC 408/2024

[2025] HKDC 258

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 408 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug". The dangerous drug involved is cannabis in herbal form.

Summary of Facts

2.  About 12:15 p.m. on 29 July 2023, DPC 14574 saw the defendant walking from Warehouse D, Lot 22, DD 37, No.5 Wo Keng Shan Road, Wo Keng Shan, New Territories ("the Warehouse")  with a recycle bag.  He stopped the defendant for enquiry.

3.  Upon search, the following items were found in his recycle bag:  (a)  1 small transparent plastic packet which contained 1 plastic bag which contained 2 plastic bags containing a total of 95.2 grammes of cannabis in herbal form; and (b)  2 transparent plastic packets (each consisting of plastic wrappings)  containing a total of 994 grammes of cannabis in herbal form.

4.  Under caution, the defendant admitted that he had kept and delivered the cannabis buds for "Ah Wai", who would give him $500 for each successful delivery.

5.  A few minutes later, police officers searched the Warehouse and found the following items at various locations :-

(a)  Inside a carton box found in a room

20 transparent plastic packets (each consisting of plastic wrappings)  containing a total of 9.98 kg of cannabis in herbal form;

(b)  On a table in the living room

(i)  an electronic scale;

(ii)  a sealing machine;

(iii)  grey recycle bags;

(iv)  a stack of transparent plastic bags; and

(v)  a pair of black gloves.

6.  Under caution, the defendant admitted that he had kept the cannabis buds for "Ah Wai" and would deliver them after receiving his instructions.

7.  In his video recorded interview, the defendant admitted that he had kept the cannabis buds for "Ah Wai" and would deliver them.  He would receive $500 each for delivering a pack of cannabis buds.  The defendant knew that cannabis buds were dangerous drugs.  He had kept the cannabis buds in the Warehouse, which was rented by him in June 2023.  In July 2023, Ah Wai asked the defendant to collect a carton box containing cannabis buds near a public toilet close to the Warehouse.  He opened the carton box and found 20 odd packets of cannabis buds inside.  He weighed each packet.  On 29 July 2023, the defendant was asked to deliver 3 packets of cannabis buds by placing them near the public toilet.  No one but the defendant could enter the Warehouse.

8.  The landlord of the Warehouse confirmed that he had signed a tenancy agreement with the defendant. He rented the Warehouse to the defendant from 20 July 2023 to 19 July 2025 at $5,800 per month.  The landlord did not have the key to the Warehouse.

9.  The defendant's fingerprints were found on the electronic scale found in the Warehouse.  DNA which could have originated from the defendant were found on 2 transparent plastic bags containing cannabis.  The estimated street value of all the cannabis found was about $2,558,000.

Mitigation & Sentence

10.  The defendant is 32 and single.  He has 1 conviction record, which was a "simple possession" offence (dated 2012).  He was given a Probation Order for 12 months.  Defence counsel Mr. Li informed me that the defendant left school after Form 3.  He is a trained hairdresser and has also worked in the construction field.  He resides with his mother in a public housing unit.

11.  In mitigation, Mr. Li submitted that the defendant had difficulty in finding work in both the hairdressing and construction fields during the pandemic.  He wrongly resorted to drug trafficking to ease his financial burden.  Mr. Li stressed that the defendant is determined to turn a new leaf.  He has completed courses (both vocational and religious)  during his time remanded in jail custody.

12.  Drug abuse has been a long-term problem in our society.  As a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons still relatively young who got involved with dangerous drugs for various reasons.  Undoubtedly, most of them were "used" by bad persons (or so they claim).  That is the reason why we need to make people think twice before they agree to be "used".  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.

13.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in herbal cannabis (see HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329).  For under 2,000 grammes, the range is up to 16 months' imprisonment.  For 9,000 to 15,000 grammes, the range is 48 to 66 months' imprisonment.

14.  In Charge 1, the defendant trafficked in 1,089.2 grammes of cannabis in herbal form.  Applying a strict arithmetical approach, the starting point should be 9 months' imprisonment, which I would adopt.  With the timely guilty plea, the sentence becomes 6 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 6 months' imprisonment for this charge.

15.  In Charge 2, the defendant trafficked in 9,890 grammes of cannabis in herbal form.  Applying a strict arithmetical approach, the starting point should be 50 months' imprisonment, which I would adopt.  With the timely guilty plea, the sentence becomes 33 months.   I sentence the defendant to 33 months' imprisonment for this charge.

16.  In this case, the defendant trafficked in a total of 10,979.2 grammes of cannabis in herbal form.  Applying a strict arithmetical approach, the global starting point for both charges should be 54 months' imprisonment, which I would adopt.  With the timely guilty pleas, the overall sentence becomes 36 months.  Hence, I order 3 months in Charge 1 to run consecutive to Charge 2.  Thus, arriving at a total prison term of 36 months for both charges.