HKSAR v. Qin Gaoyun and Another

DCCC 666/2019

[2019] HKDC 1689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 666 OF 2019

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REASONS FOR SENTENCE

1.The defendants plead guilty to trafficking in 10 kilogrammes of cannabis in herbal form, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at about 0825 hours on 23 February this year Customs and Excise officers intercepted a river trade vessel “Zhi Hang 328” near Nam Wan Kok, Tsing Yi. 

3.The officers found next to a desk inside the crew’s resting room a black suitcase inside which was ten tinfoil bags containing the cannabis.  The estimated market value of the cannabis was HKD4,360, 000.

4.Under caution and in a subsequent video recorded interview D1 admitted ownership of the suitcase which he brought to Hong Kong from Mainland China where he worked as a sailor.   D1 told the police he was asked to bring the suitcase for a reward of HKD5,000 to be paid on successful delivery.

5.D1 was also in possession of two smartphones, HKD500 and RMB47.50.

6.After D1’s arrest one of his smartphones received twelve calls from phone number 9574 0764.  At about 1050 hours D2 approached D1 and took the suitcase from D1.  When CO 1140 approached and revealed his identity, D2 fled leaving behind the suitcase. 

7.D2 was intercepted and arrested.  D2 was found in possession of two smartphones one of which had the phone number 9574 0764.  Records of WhatsApp messages on the phone 9574 0764 instructed D2 to go to the vicinity of Hong Kong United Dockyard in Tsing Yi to collect the suitcase.   Records of the phone also showed that the defendant received photographs of a bag of cannabis on 11 February 2019. 

Mitigation

D1

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Wu on behalf of D1, including that D1 agreed to bring the drugs to Hong Kong because of financial difficulties[2].

9.I take into account that D1, a citizen of Mainland China, has a clear record in Hong Kong.

D2

10.In passing sentence, I have carefully considered the oral and written submissions of Mr Ching on behalf of D2, including his timely plea of guilty.

11.I take into account that D2 has no similar convictions for trafficking in dangerous drugs.

Guidelines

12. In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing[3]. Where the quantity of cannabis resin is over 9000 grammes sentence after trial is upwards of 4 years’ imprisonment. 

13.The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

14.I am satisfied the appropriate starting point after trial for trafficking in 10 kilogrammes of cannabis resin is 4 years and 2 months’ imprisonment.  The cannabis being in herbal form I adjust the starting point by 8 months to 3 years and 6 months’ imprisonment[4].

International element

15.The importation of cannabis into Hong Kong adds an international element to the offence and is an aggravating feature of sentence.  D1 imported the drugs into Hong Kong and D2 was the first person receiving the drugs on their importation into Hong Kong at the point of entry into Hong Kong.   

16.Mr Cheung explains the messages referred to in paragraph 8 of the admitted facts show the defendant discussing the transportation of the cannabis by ship together with photographs of the cannabis.  Mr Cheung accepts that there is no message which directly says the cannabis was being imported from China. 

17.Mr Ching submits this is insufficient to show that D2 knew the cannabis was imported from China.  Having indicated in court that I do not accept the assertion the defendant did not know the drugs were imported from China, Mr Ching informs the court the defendant does not wish to testify on this issue. 

18.I am satisfied the messages together with the collection of the cannabis at the point of entry is sufficient to draw the inference the defendant knew the cannabis was imported from China.  I am satisfied collecting the cannabis knowing the cannabis had been imported from overseas is an aggravating feature of sentence[5].

19.I enhance the starting point for both D1 and D2 by 3 months to 3 years and 9 months’ imprisonment. 

Sentence

D1

Assistance to authorities

20.Mr Cheung accepts that the arrest of D2 was made possible with the cooperation of D1 in a controlled delivery[6]. In the circumstances I am satisfied D1 is entitled to a 40% discount in sentence. 

21.D1 is convicted and sentenced to 2 years and 3 months’ imprisonment on charge 1. 

D2

22.Giving D2 full credit for his plea of guilty reduces the sentence to 2 years and 6 months’ imprisonment.  There are no grounds to further reduce the sentence of D2. 

23.D2 is convicted and sentenced to 2 years and 6 months’ imprisonment on charge 2.