COURT: The defendant pleaded guilty to two counts of trafficking in a dangerous drug in the Eastern Magistrates’ Court on 17 October 2023. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.
Count 1 avers that the defendant on 28 March 2022, at Podium Floor, Sea Crest Villa Phase 1, 18 Castle Peak Road, Tsing Lung Tau, New Territories, unlawfully trafficked in a dangerous drug, namely, 11.265 kilogrammes of a mixture containing 9.864 kilogrammes of heroin hydrochloride (‘heroin’).
Count 2 avers that the defendant on 28 March 2022, at Flat A, 13th Floor, Block 2, Sea Crest Villa Phase 1 (“the Flat”), unlawfully trafficked in a dangerous drug, namely, 11.98 kilogrammes of a mixture containing 10.64 kilogrammes of heroin and 5.96 kilogrammes of a crystalline solid containing 5.85 kilogrammes of methamphetamine hydrochloride (commonly known as ‘Ice’).
The Facts
The facts giving rise to the offences were that on 28 March 2022, at around 10.10am. The police intercepted the defendant at the lobby of Block 2 of Sea Crest Villa Phase 1, near the post box area. The defendant was carrying a suitcase that contained 32 blocks of suspected dangerous drugs. Under caution, the defendant said ‘Ah Jay’ asked him to deliver those 32 blocks of dangerous drugs to others.
Upon search of the flat, the police seized the following:
(a) 34 blocks containing a total of 11.98 kilogrammes of the mixture containing 10.64 kilogrammes of heroin hydrochloride;
(b) 6 packets containing 5.96 kilogrammes of a crystalline solid containing 5.85 kilogrammes of Ice;
(c) 1 electronic scale;
(d) a packet of transparent resealable plastic bags;
(e) a box of opened plastic gloves;
(f) a pair of used plastic gloves;
(g) an electronic sealing machine;
(h) a packet of resealable paper bags;
(i) 1 green nylon bag;
(j) 1 trolley; and
(k) a letter from China Light & Power and a water bill addressed to the defendant.
Upon his arrest and caution at the scene, he admitted he received money from ‘Ah Jay’ to keep the 34 blocks of “Double Lion and Earth” brand dangerous drugs and 6 packets of dangerous drugs in tea leaves packaging. Jay would inform him to deliver the drugs to others when needed.
In a subsequent video-recorded interview, the defendant admitted that:
(a) He got acquainted with ‘Ah Jay’ in about 2019. He communicated with Jay through WhatsApp or Jay’s prepaid SIM card number, Jay changed his number frequently.
(b) The defendant told Jay that he was in financial difficulty in the past two years as he had lost money in the stock market and gambling. He was indebted for about $400,000 to $500,000.
(c) In June or August 2021, Jay said he would give him $180,000 if he could help to deliver and store some dangerous drugs in a Flat and Jay would call him whenever delivery was required. The defendant agreed to help Jay.
(d) Jay told the defendant that the “Double Lion and Earth” brand blocks were “white powder”, and those containing the tea leaves packaging were Ice.
(e) Jay found online that the Flat was on lease and asked the defendant to contact the landlord to rent the Flat in the defendant’s name. The defendant did so. He signed the tenancy. The defendant was the only person who knew the passcode of the Flat’s door lock. Jay gave money to him to pay for the rental by putting cash in a bush in a park in Tsuen Wan two or three days before the first day of each month.
(f) The defendant also rented a van pursuant to Jay’s instructions in about October 2021. The defendant used the truck to transport dangerous drugs packed in four large green nylon bags back to the Flat from Stanley Beach on a day in October 2021. The defendant said he waited for about six hours at the metered parking space from around 12 - 1am to 6am. A man then parked a car next to the van and transferred the drugs onto the defendant’s van.
(g) In February 2022, Jay instructed the defendant to open the nylon bags to check the dangerous drugs. The defendant opened all four nylon bags and saw some “Double Lion and Earth” brand blocks and dangerous drugs packed in tea leaves packages. After checking the conditions of the drugs, he reported to Jay and left the Flat. He had delivered the drugs two to three times under Jay’s instructions since he brought the drugs back to the Flat in February 2022. He believed the dangerous drugs in the tea leaves packages were Ice and the “Double Lion and Earth” brand blocks were white powder.
(h) On the date of delivery, Jay would call and ask the defendant to deliver the drugs to V Walk by putting the required amounts of drugs (usually several blocks each time) into a black bag, and put them into a locker at LE floor. After he set the passcode of the locker, he informed Jay about the passcode.
(i) For the trafficking of the drugs in the two Counts, the defendant received a call from Jay the night before he was intercepted. He was instructed to go to the Flat at 10am on 28 March 2022 and put 32 blocks of “Double Lion and Earth” brand dangerous drugs into the suitcase and deliver it to Yuen Long Yoho Mall One. The defendant was supposed to put the drugs into the locker at the Mall and set the passcode.
(j) The defendant had already received the reward of $180,000 in early March 2022 in cash from Jay.
(k) When asked about the WhatsApp messages or calls between the defendant and Jay in his white Samsung phone, he said code words were used to describe different types of drugs in different packaging. For example, ‘Mango’ meant the drugs in tea leaves packaging. ‘Strawberry’ meant the “Double Lion and Earth” brand drugs.
(l) The defendant had sent videos to Jay to record how much drugs were left in the Flat, where the drugs had been stored at V Walk, and how much drugs he had packed.
(m) The defendant admitted he was the only person who had contacted these 34 blocks of drugs seized from the Flat and they were the drugs he transported from Stanley to the Flat upon Jay’s instructions.
(n) The defendant admitted that the digital scale seized from the Flat was for weighing the dangerous drugs.
(o) A packet of transparent resealable plastic bags was for packing Ice. The defendant said he was asked by Jay to buy them for packing the Ice. He had packed 1 gramme of Ice using those bags, and put them into the bush in the park while he collected his $180,000 reward.
(p) He admitted using the seized marker to write the passcodes of the locks, and that the seized scissors, gloves, sealer and paper bags were for handling/packaging of dangerous drugs, but the sealer had never been used.
The WhatsApp messages found in the defendant’s mobile phone showed the defendant and Jay communicated in code words. He had three phone numbers in his two mobile phones, one of the numbers were frequently used to contact Jay. The last contact with Jay was made at 1003 hours, shortly before the defendant’s arrest.
The defendant’s DNA was found on 11 pairs of samples taken from plastic wrappings of heroin, the plastic bags containing Ice, the digital scale, the suitcase carried by him, a marker pen and an electronic sealing machine. The fingerprint of the defendant was also found on the marker pen.
Government chemist confirmed the seized drugs contained a total of 20.504 kilogrammes of heroin and 5.85 kilogrammes of Ice. The estimated street value of all the seized drugs in the present case is $27,136,910.
The defendant now admits and accepts he was unlawfully trafficking in all the dangerous drugs seized in this case.
Antecedent and Mitigation
The defendant was 34 years of age at the time of offence, he is now 37 years old. He was educated to Form 7 in Hong Kong. He had no previous criminal record.
He was a casual construction worker earning about $20,000 per month. He lived alone and would give $5,000 a month to his parents who were living with his other three siblings.
In mitigation, Mr Leung mentioned that the defendant’s heavy addiction to gambling and bad investment decisions landed him heavy financial loss. He ranted his financial loss to his friend in Australia, who introduced Ah Jay to him. Driven by financial motive, the defendant participated in drug trafficking.
I have read the mitigation letters from the defendant’s girlfriend, his elder sister, his friends and ex-schoolmates. They all spoke in one voice that the defendant is a diligent, responsible and caring person. They are also present in court to give their support to the defendant. They plead the court to impose a lenient sentence.
Mr Leung also submitted that the defendant had been working hard during his time of remand by studying several courses and programmes. He has also completed the “Foundation Certificate in Presentation Software Application” in 2024 and passed all required assessments.
Mr Leung has said all he could on behalf of the defendant.
Mr Leung also rightly referred this court to the case of Tam Yi Chun regarding the sentencing guidelines for the trafficking of ‘Ice’ and the six-step approach set out in Herry Jane Yusuph. And he submitted that a starting point of 30 to 31 years’ imprisonment is appropriate.
Consideration of Sentence
I will approach the sentencing by applying the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150.
Step one is to identify relevant guideline band applicable to the quantity concerned.
Counts 1 and 2 occurred on the same day, at different locations. I would regard the two offences as arising from the same incident, representing one occasion of trafficking in the total quantity of drugs. I would impose a sentence on both offences for that total. As rightly submitted by Mr Leung, the aggregated total amount of drugs should be taken for fixing the starting point. This is to avoid unfairness to the defendant and reflect the reality of the situation: see HKSAR v Wan Lau Mei [2014] 4 HKC 75 at paragraphs 27 to 30 and Chong Cho Kit CACC 363/2005. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal stated for trafficking in Ice for amounts of 600 grammes and over, the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin would apply (see paragraph 34).
I would sentence the defendant by adding 20.504 kilogrammes of heroin and 5.85 kilogrammes of Ice. The total combined narcotic contents of the drugs were 26.354 kilogrammes.
The sentencing tariffs for trafficking in Ice are provided in Tam Yi Chun. The sentencing tariffs for heroin are provided in R v Lau Tak Ming [1990] 2 HKLRD 370 and Abdallah.
The heroin involved in this case has exceeded the highest band (ie 30 years for 15 kilogrammes) as set out in Abdallah. For quantities above 15 kilogrammes, it calls for the sentencer’s discretion.
I should add that the prevailing sentencing limit for dealing with the trafficking in very large quantities of dangerous drugs is 35 years’ imprisonment after trial: see HKSAR v Sum Ka Wa [2024] HKCA 760 at paragraph 26 by Macrae VP, Acting Chief Judge High Court.
Given the large quantity of narcotics involved which exceeds the current level of 15 kilogrammes in the realm of discretionary sentencing, I will take a global view in sentencing in light of the criminal conduct and consider the appropriate starting point should be 30 years and 6 months’ imprisonment.
In respect of the defendant’s role and culpability, I am satisfied he is a storekeeper/courier. By the defendant’s own admission, the defendant was heavily involved in the packaging and repackaging of the drugs as well as dissemination of the drugs. According to the defendant, the plan on 28 March 2022 was for him to deliver 32 blocks of heroin and put them into a locker in Yoho Mall One. I therefore assess his culpability on that basis.
There is an aggravating factor involved in the present case under step four of Herry Jane Yusuph. Two kinds of drugs (that is Ice and heroin) were being trafficked, thereby catering a wider market of consumers (see HKSAR v Yim Hung Lui, Ricky (unrep., CACC 266/2011, 13 February 2012) at paragraph 11, HKSAR v Islam Azharul [2020] 1 HKLRD 644 at paragraph 15, HKSAR v Chan Yuk Leong CACC 318/2013 at paragraphs 23 to 25, and more recently, in HKSAR v Leung King Hung [2024] HKCA 804 at paragraph 62). I will enhance the sentence by 6 months.
Regarding mitigating factors, personal circumstances will count for little, unless they are exceptional in trafficking cases. There is none in this case. The real mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 20 years 7 months’ imprisonment after rounding down.
Finally, under step six of Herry Jane Yusuph, I have to consider the totality of sentence where more than one count is involved and more than one aggravating feature is engaged to ensure the sentence is fair and balanced.
I am of the view that the ultimate sentence of 20 years 7 months’ imprisonment for both Counts 1 and 2 to run concurrently is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 20 years 7 months’ imprisonment.