HKSAR v. Fong Ho-yam and Others

HCCC 82/2019

[2019] HKCFI 2026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 82 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Yes, well, all of the defendants have confirmed this morning their pleas of guilty to the sole charge facing each of them of conspiracy to traffic in herbal cannabis between 20 and 26 May 2017. This was contrary to sections 4(1)(a) and 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Chapter 200.

The Summary of Facts goes into commendable detail about the involvement of each defendant in what was plainly a fairly well-organized commercial enterprise, involving 90.259 kilogrammes of herbal cannabis which had earlier been imported from Canada. There was in addition to a small quantity of a liquid containing 19 grammes of tetrahydrocannabinol which will not affect the sentence. The value of these drugs on the street is estimated at $18,232,318.

As Mr Pun pointed out on behalf of the 1st defendant, although importation of the cannabis might usually involve enhancement of the sentence, there is no evidence in this case that any of the defendants was directly involved in that importation which had physically taken place prior to the dates in the conspiracy.

On the arrival of the cannabis, difficulties were experienced in locating the named consignee so that suspicions were aroused and police were asked to inspect the consignment. The cannabis was then discovered inside 11 boxes. These boxes were replaced on 22 May 2017 with 11 other boxes pending collection. On the same day, the shipping company had been notified by e-mail that Fong Ho‑yin would collect the shipment. This was the 1st defendant’s name before he altered it to Fong Ho-yam, doubtless in view of his criminal record.

On 25 May 2017, police were ready to act when Fong Ho-yam, the 1st defendant, arrived at 11 o’clock in the morning to collect the drugs. He produced identity documents and a bill of lading to the staff who inquired what transport arrangements he had made. He said that he had booked a medium-sized goods vehicle which would soon arrive, and he gave the staff the registration number of that vehicle. In due course, the dummy boxes were taken from the warehouse to a loading bay where the vehicle described by the 1st defendant duly arrived at 11.30 in the morning. The GoGo driver of the vehicle was an innocent party in all of this. However, Wong Chun-sing, D2, was seen lingering close by. And when the 11 boxes had been loaded onto the vehicle on D1’s instructions, both D1 and D2 were arrested.

D1 originally tried to make out that he did not know what he was collecting and had been asked by Wong Chi-kam, the 3rd defendant, D3, to make the collection in return for a monetary reward. He said he had known D3 from Pik Uk Correctional Institution.

D2 also denied when first spoken to knowing anything about the collection of cannabis, but later a very much fuller picture emerged.

D1 told the police that he had been telephoned by D3 who had asked him to collect the cannabis because D3 said he did not have the time. He was offered a reward for this of $10,000. D1 was also asked to rent a mini-storage unit where the cannabis was to be kept. In due course, he was given a sum of $10,000 which was needed for the rental. D1 then went to the storage unit with D2 and rented the unit for three months. He had not yet, he said, received this $10,000 reward for collecting the cannabis, but he admitted that he had got D2 to hire the GoGoVan. He also provided the telephone numbers of D3, Wong Chi-kam, and agreed to assist the police to testify against D3. And I will return to that later.

D2 was interviewed and he told the police that he was friends with D1 from the time that they were serving a sentence together at Pik Uk. He said that on 20 May 2017, D1 had telephoned him and he was asked to accompany D1 to collect some cannabis for which he would be paid $5,000. He was told that there would be a further reward of $25,000 after the packing and selling of cannabis.

On 24 May 2017, D2 duly met up with D1 at the place where D1 had been given money to pay for the storage unit. Together they took a taxi to the place where D2 saw D1 pay $9,900 for the storage which was rented in D1’s name.

On 25 May 2017, D2 was again called by D1, this time to hire a van using D1’s telephone number. He then went to the industrial centre for the goods to be loaded onto the van. D2 said that he had not yet been paid his promised reward. He did indicate that he would assist the police by testifying against D3.

D3 himself was the next to be arrested. That was on the 25 May 2017. He told the police that he had been asked by D4, that is Cheng Ka-long, to find someone to collect the cannabis. He said that he asked his friend D1 to do the collection. D3 described D4 in a later interview as a friend who he had met about six months earlier when they had exchanged telephone numbers. And about a week before his arrest, D4 had asked him to collect and pack cannabis for him. He was reluctant but D4 was very insistent. So he said it was then that he referred D1 to D4 after D1 had agreed to do the job.

D4 had required proof of D1’s address and ID card. These were duly provided on WhatsApp. D3 said that he was promised $10,000 for obtaining D1’s services which would be paid once the job had been done. On 24 May, D3 telephoned D4 to say that the collection would be on 25 May.

D4 was arrested on 26 May 2017. Unlike the others, he alone has no previous criminal record. He remained mostly silent. But while he denied knowing D1 and D2, he refused to say anything about D3 at all. His mobile phone was then taken from him. The WhatsApp text and voice messages with D3 demonstrated that it was he who had requested D3 to find someone to collect the goods and rent somewhere to store them. D3 later told D4 that he had found someone, and D4 then detailed the procedure to be followed, including the date that the goods would arrive. In relation to their collection and in relation to storage, he gave instructions. These two men, D3 and D4, also discussed the risks involved in what they were undertaking to do.

D3 sent an image of D1’s identity card to D4 and informed D4 that D1 would carry out the task of collection and arranging for the storage. It is quite clear from the information stored on D4’s mobile that he was, insofar as this particular operation is concerned, the mastermind of it. It appears that D3 and D1 bear a similar degree of blame. D2 appears to have been slightly less involved than the others.

The principal mitigation for the 1st defendant, now aged 20, has understandably been his cooperation with the police.

(Discussion re the 1st defendant’s age)

Anyway, his main mitigation has understandably been his cooperation with police and his provision of a statement on 26 May 2017. In this, he set out his knowledge of all the facts. He also said that he was prepared to testify against D3 who, like D2, he had met at Pik Uk while serving a custodial sentence. In fact, they were subsequently transferred to the Collinson Correctional Institution. For this statement, of course, he will receive an additional discount to his sentence which is in relation to his cooperation with the authorities.

It is a sad feature of this case that three of the defendants, certainly with the 1st, he has a conviction not only for trafficking in dangerous drugs previously but also a conviction for robbery, that he appears to have learnt nothing from his earlier experiences.

As for the 2nd defendant, now aged 23, he has a conviction for trafficking in dangerous drugs for which he, like D1, received a training-centre sentence. And, of course, it was while he was doing that that he met up with D3. Much later on in proceedings, he expressed the desire to help the police by testifying against D3. His expression of cooperation will be reflected but to a lesser extent than in the 1st defendant’s case.

D3’s role in this was to find someone who would do D4’s dirty work, namely, collecting, storing and packing this huge consignment of cannabis. He successfully recruited D1 who in turn, of course, got D2 to assist. And he knew exactly what he was doing. He is now 22 years old and from his previous sentence for trafficking in dangerous drugs at the training centre, he has learnt absolutely nothing.

D4, although only 22 at the time of the conspiracy, organized the activities of the other three defendants in this conspiracy, and is therefore the major culprit to be involved. Whether there are, and there undoubtedly must have been, others involved in a much more senior level in this kind of criminal enterprise has never been disclosed by him. He has given no cooperation to the authorities. In fact, he has really no mitigation of any real substance.

Many letters were produced on his behalf to show that otherwise in life he has behaved himself. And as far as this is concerned, he is full of contrition. So he should be. It was extremely greedy of him to have undertaken it in the first place. Whether he is sorry about being caught or whether he is sorry because he really is full of contrition, I do not think I need to go into. The positive side is this: that it is very likely that he is one who will be rehabilitated in due course. It is encouraging to see that he intends to study while in custody rather than just waste his time there.

On any view, this was a large drug seizure of the kind which is less addictive or anything of that kind than resin, the cannabis resin, but the value speaks for itself. When a criminal enterprise involves sums as large as $18 million, plainly a notice needs to be taken of this. It is, of course, the fact that cannabis resin, as I have said, is a more potent drug. But now that cannabis has recently been legalized in various parts of the world, including Canada, it is plainly important that the courts impose sentences which will attempt to dissuade others from accepting shipments such as this one which will otherwise possibly flow in from countries and places where growing cannabis is now legal.

There are no precise guidelines for amounts as large as this, but Attorney General v Tuen Shui Ming & Another [1995] 2 HKC 798 is helpful. This case was concerned with 51.23 kilogrammes of cannabis resin. And under the guidelines issued by the Court of Appeal at a time when it is pointed out there was a “steady decline” in trafficking in cannabis, “4 years and upwards for over 9 kilogrammes” was found to be appropriate. It will be for the Court of Appeal to decide whether further guidelines are required, bearing in mind that there are cases in which very much larger amounts have been seized.

The court went on to say that the difference in concentration of THC, that is, tetrahydrocannabinol in resin, cannabis resin, rather, was about four times higher than in herbal cannabis. And it is because of this that the sentencer “must adjust the tariff which applies to cannabis resin when sentencing for trafficking in herbal cannabis”.

“Persons with herbal cannabis could, except in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

In that review of sentence appeal relating to approximately 50 kilogrammes, the Court of Appeal expressed the view that 7 years would have been an appropriate starting point. The weight of cannabis in this case is considerably more than the amount given in the guidelines which only extend it to 9 kilogrammes, and its value speaks for itself, but it does plainly come into the category of a very large amount.

Turning now to the present case, would you stand, please? Cheng Ka-long, Cheng Ka-long only. You have pleaded guilty in good time so that you will receive the full discount. I propose in your case to take a starting point of 9 years. Your sentence is 6 years’ imprisonment. Yes, please sit down.

Wong Chi-kam, would you stand up, please? Your role in this conspiracy was at a slightly lower level than the defendant I have just sentenced. You knew exactly what you were doing when you recruited the 1st defendant, and you have been previously convicted of trafficking. In your case, I am going to take a starting point of 8½ years’ imprisonment which I have increased from 8 years because this is not your first trafficking offence. You have pleaded guilty in good time, so you will be given full credit. Your sentence is that you will go to prison for 5 years and 8 months. Thank you. Please sit down.

Would the 1st defendant, Fong Ho-yam, please stand? You played a full part in this conspiracy. Having been in trouble previously for trafficking, which is a further indication you knew exactly what was going on, you were recruited by the 3rd defendant but your role was crucial. I will take the same starting point as I have taken for the 3rd defendant, namely, 8½ years’ imprisonment which is a sentence I have enhanced from 8 years because of your previous conviction for trafficking. In your case, you have considerable mitigation because you were prepared to cooperate with the authorities from an early stage. The discount on your sentence, as your counsel suggested, will be one of 45 per cent. Your sentence is that you will go to prison for 4 years and 8 months. Yes, please sit.

Would the 2nd defendant please, Wong Chun-sing, please stand? You were recruited by D1, the 1st defendant, to assist him in what he was doing. Your role was possibly the least, but you knew exactly what was going on also. You have served a sentence previously for trafficking. In your case, I propose to take a starting point of 7½ years which I have enhanced to 8 years to reflect your previous conviction for trafficking. I think it is just possible to say that your sentence should be discounted by 40 per cent in view of the fact that you were prepared to assist the police. This, however, came at a much later stage, unlike the 1st defendant’s assistance which probably led to the pleas of guilty. In any event, a relatively lowly role in this conspiracy meant that you were not able to supply much detail. No statement was taken from you as to this. In any event, your sentence will be, because I am giving you full discount plus something for your assistance, 4 years and 6 months.