CRIMINAL CASE NO. 376 OF 2009
COURT: Yim Lung-wah and Wu Hon-shing, from what I have read in the papers before me and from what I have been told by your counsel this morning, I know that you both appreciate the great harm that dangerous drugs, particularly dangerous drugs of the nature of heroin, causes to society and I do not propose to sermonise about that.
I am also prepared to accept, again from what I have read and been told, that both of you are genuinely sorry for what you did. From the letters that are before me and again from what I have been told this morning, I am aware that you know the shame and distress that you have brought on your families.
All that being said, there is, I have to say, nothing in the circumstances of the commission of your two offences that I find to be of any mitigating value. The manufacturing operation that you both engaged in was spread over a period of weeks and I think it matters little that you, Wu Hon-shing, joined in at a slightly later period of time than Yim Lung-wah did.
I have taken great care to find out about your family circumstances, your educational levels and your general backgrounds. Again, from what I have read in the very comprehensive reports that have been placed before me, I am prepared to accept that both of you are fundamentally decent young men who, in an increasingly what is called “modern economy”, find it, with your limited educational achievements, difficult to find regular and reasonably paid work. So much so that both of you have fallen into temptation and committed criminal offences and acquired criminal records.
It is clear that both of you are from good families. There is nothing discreditable in your family backgrounds. I take note of the fact that you, Wu Hon-shing, through no fault of your own, have lacked a father’s guiding hand and advice since you were very young.
Although you both have criminal records, and yours, Wu Hon-shing, includes a previous conviction for trafficking in dangerous drugs in 2005 for which you were sent to a detention centre, I am prepared to overlook both of your criminal records and not see them as an aggravating factor in deciding your sentences for your two offences. All that being said - and it is to your credit - have to say that I find nothing in your backgrounds that would permit me to give you any further reduction in your sentences than the ones that I am permitted to give you for your guilty pleas. That might sound harsh, but I have to bear in mind that there are many young men from the same background as you, many young men and many young women, the majority of whom have never fallen into temptation and committed criminal offences.
In both of your cases, your most powerful, indeed, your only mitigation lies in the fact that you have both pleaded guilty to the two offences you face. It is now well-recognised in Hong Kong that a plea of guilty from a defendant indicates realism. Not only does it indicate realism, it indicates an acceptance by the offender of the fact that he has breached the criminal law. That is usually expressed by the phrase that it indicates remorse and I accept that you both are remorseful. You will both receive a proper recognition for those pleas of guilty in your sentences.
Although you both face a joint count of conspiracy to manufacture dangerous drugs - and here that amounted to the grinding of heroin and its adulterants and the packing of the ground mixture into straw packets - along with a joint count of conspiracy to traffic in dangerous drugs - here that relates to the agreement between the two of you to ultimately transmit them to others for distribution - I agree with your counsel that the two counts on the indictment reflect one course of criminal conduct and you are going to receive concurrent sentences in respect of those two offences.
I have thought long and hard, Wu Hon-shing, whether I should sentence you to undergo training in a Training Centre. You are still young enough to go to a Training Centre and the intake officer, in his report, indicates that, in his view, you are considered suitable for training in one. This has caused me a great deal of difficulty.
With some regret, I have to say that I believe that the policy of the appellate courts in Hong Kong, whose decisions I am bound both by law and practice to follow, is that for an offence as serious as yours, in particular a conspiracy to manufacture heroin over a period of time, which is just about as serious an offence as there can be in relation to the regime against dangerous drugs, is that for such an offence, a Training Centre Order is just not a viable option for a young offender. That is the policy of the appellate courts. Whether it will change in the future, I do not know; it is out of my hands.
Your sentence, I regret to say, Wu Hon-shing, has to be one of imprisonment. Although on your own account, your involvement, Wu Hon-shing, was slightly shorter than Yim Lung-wah’s, I regard the two of you as equally culpable in respect of both offences. You will both receive the same sentence.
Your respective counsel, who are very experienced criminal advocates, will have told you that there are guidelines laid down by the Court of Appeal for all judges as to how we should sentence people who traffic in dangerous drugs, or involve themselves in their manufacture. They will have told you that those guidelines are based on the weight of the active content of the dangerous drug involved, in this case, the active content in the heroin mixture.
In this case, the weight of the active heroin content in the mixture that you were manufacturing and packing when you were arrested, I believe on 28 April last year, was 21.82 grammes. The mixture weighed 87.40 grammes and it is estimated that its street value was $48,157. In addition, you were caught with 55 tablets of midazolam with a street value of about $2,035 and a very large number of Zopiclone tablets, 1,469, which have a street value of $17,628.
Had you just been charged with a conspiracy to traffic in those drugs and not, as you are, with a conspiracy to manufacture and a conspiracy to traffic in them, you would have been looking at a sentence after trial - and by ‘after trial,’ I mean after you had taken this case to trial, pleaded not guilty but been found guilty by the jury - you would have been looking at a sentence of around 7 years’ imprisonment. That would reflect the fact that the offence was one of conspiracy to traffic.
But again, regrettably, your offences are more serious because they are ones of conspiracy to manufacture dangerous drugs, in addition to the conspiracy to traffic in them. Your activities, on your own admissions, were spread over a number of days and involved the manufacture of a now unquantifiable amount of street heroin. Again, as your counsel will have told you as it is part of their duty to do so, the Court of Appeal has said that those who manufacture dangerous drugs should receive higher sentences than those who traffic in them.
For the offence in the 1st count on the indictment, the offence of conspiracy to manufacture a dangerous drug, in my view, after trial, had you been found guilty by a jury and had you no mitigation whatsoever, you would both have been looking at a sentence of 10 years’ imprisonment. I can tell you that would have been a lenient sentence in view of the fact that your actual manufacturing operation was apparently quite a small scale one.
I am discounting that sentence of 10 years’ imprisonment by a full one-third to reflect your guilty pleas and your co-operation with the police.
Both of you, Yim Lung-wah and Wu Hon-shing, are sentenced to serve 6 years and 8 months’ imprisonment for the 1st count on the indictment, that of conspiracy to manufacture a dangerous drug.
For the 2nd count on the indictment, that of conspiracy to traffic in a dangerous drug, a 7 years’ sentence of imprisonment would have been appropriate after trial. Again, I am reducing that by one-third to reflect your guilty pleas and your co-operation with the police. Your sentence for the 2nd charge on the indictment, that of conspiracy to traffic in dangerous drugs, is one of 4 years and 8 months’ imprisonment.
As I have said, your criminal activities are one continuous course of conduct, in my opinion, and you will therefore serve those sentences concurrently - at the same time. That
means you are both going to be in prison for a maximum period of 6 years and 8 months.