COURT: This defendant pleaded guilty to conspiracy to traffic in a dangerous drug, between 2 and 9 July 2019, both dates inclusive, in Hong Kong with two other men who pleaded not guilty.
This defendant, not only pleaded guilty but he gave evidence for the prosecution against the other two defendants. The particulars of the 1st charge are that all three conspired together to unlawfully traffic in heroin hydrochloride.
After trial, the jury unanimously convicted both the defendants, Kwan and Leung of this conspiracy charge. There is a second charge only Kwan faced. This defendant gave evidence in that trial.
The facts of the conspiracy centred around a shipment of heroin weighing over 3 kilogrammes from Malaysia destined for Hong Kong. Answering an advertisement for fast cash or money and after speaking to a man called Carson, the defendant agreed to open an account at a business centre, offering a virtual address to provide a recipient’s name and an address for this shipment of heroin. He would also as part of his role, collect the shipment when it arrived in Hong Kong. He knew it would contain drugs and would have been paid about $6,000 per kilogramme of drugs. He was desperate for money and agreed with Carson to take the risk of putting his name on that shipment and collecting it to deliver as directed by somebody else in Hong Kong.
To facilitate the business centre account procedure, this defendant was met by Leung on 2 July, in Hollywood Plaza, Mong Kok. Leung gave him $800 to open the business centre account and an e-mail address to give the business centre. The practice of the centre was to e-mail the client at the e-mail address provided whenever post or a parcel arrived at their address for that client. Whilst this defendant went inside the business centre to open that account, Leung waited outside for him to finish.
After the account had been opened, there was a gap of seven days before the parcel from Malaysia arrived containing a water dispenser addressed to this defendant at the business centre. This defendant received a call from Leung to arrange to meet him again in Hollywood Plaza, for the parcel to be collected by him. The plan was that the defendant would go into the business centre, collect the parcel before immediately taking a taxi to Kwai Chung where he would call Leung when he arrived.
Kwan met up with Leung and travelled to Hollywood Plaza together. He would be the one who would eventually collect the parcel from this defendant. At Hollywood Plaza, only Leung went up in the lift with the defendant. However, he did not go into the business centre with him. In fact, he went up one floor, to keep a good distance from this defendant I’m sure in case, law enforcement was waiting for the recipient.
The movements of Leung and the defendant were captured by CCTV cameras on both 2 and 9 July. There were cameras in the lifts and in the corridors as well as the offices of the business centre. The presence of Kwan at Hollywood Plaza on 9 July was captured by the CCTV camera on the ground floor of the lift lobby.
The other two defendants followed this defendant’s taxi in a separate vehicle. In fact, there were members of the Narcotic Bureau also following his taxi. They had had the Hollywood Plaza building under surveillance.
On the way to Kwai Chung, this defendant received a phone call telling him to go to Belvedere Gardens in Tsuen Wan instead. He was to sit at McDonald’s in Belvedere Square and wait for collection. The other two defendants arrived there by taxi after him, both entered the square but only Kwan approached him in McDonald’s to take the parcel. Leung maintained his distance, watching the exchange from about 20 metres away. Kwan took the parcel back to him and they both left the square. They hailed a taxi, put the box in the boot and before the taxi could leave, the police surveillance operation turned overt and they were arrested. This defendant was also arrested after he left the square.
Under caution, this defendant admitted knowing the parcel contained drugs and being paid for his part of the conspiracy. He further elaborated on his knowledge and role in a video-recorded interview.
Mitigation
This defendant pleaded guilty at the earliest opportunity and is entitled to a full discount of one-third for his plea. After his indication, he approached the prosecution and provided non-prejudicial statements. He gave evidence during the trial of the other two defendants who were convicted by a unanimous jury.
I have heard mitigation that this defendant is now 31 years old and was 27 at the time of the offence. His parents passed away when he was a young boy and he was brought up by his grandmother. Sadly, she passed away 10 years ago and his much older elder cousin took him into her home. He does have a half-brother he was not close to but since this offence, his brother has shown him much support.
He would provide a financial contribution of $5,000 for his living expenses to his cousin when he was living with her family. Prior to the offence he was working as a warehouse man at the airport cargo terminal, earning about $14,000 to $15,000 a month. He soon moved out to live on his own but continued to give his cousin money every month to express his gratitude. However, in May 2019, he was forced to cut back on his hours, worked on a part-time basis only and his income dropped by a third. He was too embarrassed to tell his cousin and brother of that situation. Even though he could not afford it, he continued to give his cousin money. He quickly became short of money and desperate. He committed this offence out of stupidity and greed to be a courier or drug mule for a financial reward.
I have heard all that can be said on his behalf. I have a letter from the defendant himself, expressing his genuine remorse. He is grateful for his cousin’s and brother’s support, they have not given up on him. He has turned to religion whilst in custody and studying psychology with the hope of doing some social good once he is released from prison such as talking to young people and potential offenders warning them of the pitfalls of greed and hardship of prison.
I have a letter from his older half-brother who has confirmed his family background and the tragedy of his parents dying when he was only 10 years old. His brother feels guilty for being too busy when the defendant was an adolescent and needed a parental figure. I have a letter from his cousin who is similarly older and also feels guilty, guilty that he insisted on giving her housekeeping money even after he moved out to live on his own and had his working hours cut. She feels guilty that that is one of the reasons he had committed this offence.
Ms Ku for the defendant has said all she can say on his behalf but has also urged me to give him an additional discount for the assistance he has provided. His evidence would have been instrumental in the conviction of his co-conspirators. Such assistance should be recognised. She has referred me to the authority of Z v HKSAR [2007] 10 HKCFAR 183.
I have taken into account the nature and extent of his assistance, as well as the possibility that by giving such assistance he has put himself in danger either whilst in custody or after his release. Certainly when it was his turn to give evidence, the public gallery unexpectedly filled up with people with whom I assume were supporters of the co-conspirator he implicated. If they were, this defendant showed no signs he was intimidated.
I agree with defence counsel’s submission that the defendant should be given a further discount above the usual one-third discount for his guilty plea. I find it appropriate to consider a 50 per cent discount.
Sentencing
I have taken into account the latest authority relating to sentencing in the offence of trafficking as laid down in HKSAR v Herry Jane Yusuph [2020] HKCA 974. I have considered the six-step sentencing approach taken from that authority.
In this case, I accept and I am satisfied that the defendant can be categorised as a courier or a drug mule. Therefore, according to that authority, his sentence will be determined by the relevant tariffs and the quantity of the dangerous drugs involved. Although Charge 1 is a conspiracy, we do have the exact amount of heroin trafficked, there was 3,508 grammes of a mixture containing 3,012 grammes of heroin.
The authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, sets out the Court of Appeal guidelines for trafficking heroin. However, it does not cover such a large quantity of heroin as in this case. The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of narcotics. The Court of Appeal has decided that where between 1,200 and 4,000 grammes is trafficked, the starting point should be between 23 to 26 years’ imprisonment.
There is no doubt the box containing heroin came from Malaysia which may mean an enhancement in sentence for the aggravating factor of an international element. However, there is no evidence this defendant knew the origins of the drugs. There was no mention in his evidence of conversations with other co-conspirators about the origin of the drugs. The mere fact the drugs came from overseas does not always mean an enhancement. This was not a case where a courier physically took the drugs across the borders, either in or out. Therefore, I will not enhance any starting point due to this factor. I see no other aggravating factors to consider.
Here mathematically speaking, 3,012 grammes of heroin hydrochloride of Charge 1 would attract a starting point of 24 years and 11 months’ imprisonment.
As I have indicated, this defendant is entitled to a discount of 50 per cent for his plea of guilty at the earliest opportunity and his assistance given in the form of evidence during the trial of his co-conspirators. After that discount is applied, the defendant will be sentenced to 12 years and 5 months’ imprisonment.
I have taken into account the sixth and last step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender, to ensure that it is not a crushing sentence.
Here, in approaching this principle, I have weighed it against the term of 12 years and 5 months’ imprisonment, the quantity of drugs and the facts of the case. Standing back, it is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, the defendant is sentenced to 12 years and 5 months’ imprisonment for Charge 1.