As the facts of the two cases are related, it is the consensus of parties that the two cases should be heard together. For convenience sake, I follow the Summary of Facts in HCCC 297/2020 and call defendant Li, D1 and the defendant Fung, D2.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug concerned, background of each of the defendants and mitigation put forward on their behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarised as follows. In relation to D1, at 5.25 pm on 26 July 2018, he drove a private car from a garage to the car park at AIA Tower. After he had parked the car, he alighted and walked towards the boot of a purple Audi car. Then he returned to his car and approached the Audi car again after around 10 minutes. He opened the boot of that car, took out a green bag and carried the bag to his own car. Then police officers who had been observing D1 approached his car. At the front passenger seat, the green bag was found in which the subject matter of Charge 1 was contained. D1 was arrested.
Under caution, he admitted to have agreed to help someone called Sai Lo to deliver cocaine to someone as he was in urgent need of money for treating his father who had a stroke. And the officers there searched the other car with the key seized from D1. The dangerous drug which was the subject matter of Charge 2 was found. The drug was found inside a suitcase in which there were other items such as a scale, a board and an induction cooker. Inside the car boot was also a recycle bag which did not contain dangerous drug. It contained some resealable plastic bags and two electronic scales.
The dangerous drug which was the subject matter of Charge 3 was found in the garage from where D1 had driven his car. D1 was the sole owner of the garage at the material time. In a subsequent video-recorded interview, D1 admitted, inter alia, that he was promised by Sai Lo a reward of $2,000 for every delivery and on the day he was called by Sai Lo and told to go to collect stuff from the car at the car park and bring it to someone to the North Point Pier and hide it for other person to collect it.
As regards D2, police officers continued the observation of the garage after D1 had driven his car away. Around one hour and 15 minutes after that, at around 2.25 pm, D2 was seen entering the garage. He was intercepted. There was nobody else inside the garage. Under caution, he made the admission that he only delivered the dangerous drug to someone unknown to him for Ah Wai. He also said the dangerous drug found in the garage belonged to Ah Wai.
In a subsequent video-recorded interview, D2 said Ah Wai was D1. He also said on the day of the incident he went to the garage to check on the progress of the repair of his car. He had not seen the drugs seized from the garage. He admitted that he was not earning enough from his post as a senior artisan with the Drainage Services Department as he was going to get married. In the circumstances, he agreed about one month prior to the incident with D1 to deliver drug for him to earn money. For each order which would involve 24 ounces, he would have a reward of $250.
On the day before the incident, D1 called him and asked him to deliver cocaine to some customers. As a result, he went to the garage where D1 gave him a bag containing some small packs of substance which D1 told him was cocaine. He then boarded a goods vehicle arranged to carry him and when they arrived at Hing Wah Estate, he put the item near a refuse room for the customers to collect. This was regarded as one order and he would receive $250 as reward.
He was then driven to Aberdeen, Tseung Kwan O and other locations doing the same thing. Later, he was told by D1 to return to the garage to take a recycle bag and a suitcase to the AIA Tower. He found the two items.
When he looked at the content of the recycle bag, he saw substance which looked like the cocaine he had just delivered. He estimated that the bag weighed about 400 to 500 grammes. He did not open the suitcase which he said was quite heavy. D1 had told him before that the suitcase contained some tools and he had seen inside items like electronic scales and cooker.
He was then driven to the car park at AIA Tower. He found the purple Audi car and its key which D1 had told him was hidden on the left rear tyre. He opened the rear boot and put there the recycle bag and the suitcase. The recycle bag and the suitcase seized from the Audi car were the items put in the boot by him. He had no recollection of the green bag which D1 had taken from the boot of the Audi car and no recollection of some other items found in the boot. He was then driven away. He had not yet received any reward.
Call records of the mobile phone which D2 admitted to have had used for contacting customers for drug deliveries on the two days showed 69 calls to 24 different numbers and 70(74?) calls to this phone from 24 numbers with 17 from the same numbers at the 24 just mentioned and 7 from other numbers.
I was told that D1 is single, 29 years of age. He has studied up to Form 4 and was running the garage at the time of the arrest. He did not have any criminal conviction record.
I was told that D2 is 32 years of age. He has studied up to Form 5 and received further education in metal products from Vocational Training Council. He was working as a senior artisan in the Drainage Services Department. He is single and did not have any criminal conviction record. Both his parents are elderly and do not enjoy good health. D2 had planned to get married but this was interrupted by the present case.
In mitigation, learned counsel for D1, Mr Kwan, stressed that D1 pleaded guilty before a magistrate. Despite drug was found in different places, he urged the court to treat the incidents in the three charges as one transaction as it was a single task in which D1 helped Sai Lo to convey the drugs to various destinations according to the instruction of the latter.
He also asked the court to take into account that D1 had a clear record before. He said the defendant was a diligent and perseverant man and a filial son. After having finished study at VTC, the defendant started off as an apprentice and in a few years’ time managed to operate his own garage, earning a steady income.
He said the defendant committed the offence as he was in urgent need of money to treat his father who suffered from a stroke. He said the defendant frankly admitted the offence and is now full of remorse. He is determined to turn over a new leaf.
Not only did he plead guilty, he gave witness statement and was prepared to testify against D2. Having been served his witness statement, D2 had pleaded guilty to the charge of conspiracy to traffic in a dangerous drug. The prosecution confirmed that had a trial for D2 been required, it would have been the intention of the prosecution to call D1 as a prosecution witness.
Letter from D1 is produced in which he set out his personal background, the events leading to the offence and his remorse. Letters from his sisters, a pastor and a LegCo member were also produced. D1 was said to be a filial son and a responsible and helpful person. All of them mitigated on behalf of the defendant.
In mitigation, learned counsel for D2, Mr Khosa, stressed that the defendant had pleaded guilty before the magistrate. He told the court that D2 foolishly committed the offence to relieve his financial difficulty and agreed to work for D1 who is his childhood friend. He only played the role of a courier and had been co-operative with the police. He had not yet received any reward.
More than two dozens of letters were produced on behalf of D2. D2 was said to be a responsible and filial member of the family. He worked hard in his job and had been good to many people. The incident had disrupted the plan of marriage but the girlfriend of the defendant is still supportive.
Mr Khosa asked the court in gauging the culpability of D2 to take into account the following matters:
(1) Clear record of the defendant, meaning this was the first time he engaged in any offence.
(2) The incident lasted only nine hours.
(3) There is no clear evidence as to the quantity of drug which D2 had actually handled, in particular, as:
(a) Mr Khosa said when D2 admitted under caution that he had delivered drugs to others and each time for 24 ounces, he made a mistake and what he really meant was 24 grammes. In this regard, Mr Khosa asked the court to take into account that:
(1) When D2 had been performing duty with the government department, he often received information from UK in which weight is expressed by ounce, not grammes. When D2 was interviewed, he was too nervous and confused with the two terms;
(2) in any case, the admission of the defendant was vague and equivocal.
(3) whatever quantity mentioned by the defendant could only be an estimated figure; and
(4) according to the prosecution expert, drug abusers at street level are unlikely to purchase more than 5 grammes of cocaine for personal consumption and therefore 24 ounces or the equivalent of 680 grammes of cocaine is an unusual packaging at street level;
(5) such a quantity of drug would have been disproportionate to the reward of $250 which D2 said he would receive; and
(6) such packaging was inconsistent with the description of small packs which D2 said during the interview.
(b) Apart from the three places which D2 said he had made deliveries, no other place had been mentioned.
(c) Despite the driver was engaged, he was arranged by D1 and there is no indication that D2 had anything to do with this arrangement.
(d) There is no evidence as to what the telephone conversations were about; and
(e) as regards what D2 said about the weight of the purple recycle bag, again he might have been mistaken.
(4) The quantity of the drug which had actually been seized by the police was either 4.44 grammes or 7.68 grammes of pure narcotics with much more packets in the lesser quantity, and if the quantity more favourable to the defendant is adopted, the three packets which the defendant has expressly admitted to have delivered would have a total weight of only about 13.32 grammes.
(5) The purple recycle bag did not contain any dangerous drug wherein found by the police.
(6) Despite dangerous drug was found inside the suitcase, there is no evidence that D2 had knowledge about the existence of dangerous drug inside.
(7) From his admission, D2 was only engaged by D1 on a casual basis to be paid $250 for every delivery he made and it was his first day of work; and
(8) there is no indication that he was going to be employed continuously and regularly by D1, in particular as he was employed as a civil servant earning regular income.
The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in the case of trafficking in cocaine, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.
I will deal with D1 first as the quantity of the dangerous drug he had trafficked in was known. Charge 1 against D1 involved 875 grammes of cocaine, Charge 2 involved 410.01 grammes of cocaine and Charge 3 involved 1,766 grammes of cocaine. The total quantity of narcotic content which D1 had trafficked in was 3,051.01 grammes of cocaine. It was held in Lau Tak Ming that if the narcotic content was 400 to 600 grammes, a sentence of 15 to 20 years’ imprisonment should be considered.
In the subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content was 600 to 1,200 grammes and the sentence of 23 to 26 years’ imprisonment should be considered if the narcotic content was 1,200 grammes to 4,000 grammes. I see no reason to justify any departure from the sentencing tariff.
Despite I have found D1 higher in the hierarchy than D2, there is no indication that he was high in position and I find his role also that of a courier.
For D1, I will adopt the following starting points: Charge 1, 21 years and 4 months; Charge 2, 15 years and 3 months; Charge 3, 23 years and 7 months. I am of the view that only an overall notional sentence after trial of 24 years and 11 months is sufficient to reflect the seriousness of the case against D1.
As regards D2, the offence he committed was conspiracy to traffic in cocaine. In consideration, I have had regard to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012 and HKSAR v Chung Yat Ho, CACC 367/2010. If quantity of the drug involved is known, it will provide the court with a relative means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity. In the present case, the exact quantity is not known but there are some indications from the overall circumstances of the case and what the defendant said under caution.
I have analysed the evidence in order to make an estimate which would fairly reflect the quantity of drugs which were agreed between the two defendants to be trafficked and on the ultimate issue of the degree of culpability of D2 in this conspiracy. In the course I have carefully considered everything said by Mr Khosa both in his written submission and at the hearing, including what he said about the applicable consideration principles.
D2 admitted to have engaged in the conspiracy in around nine hours on the two days as stated in the indictment: the day when he was arrested and the previous day. The prosecution fairly pointed out that there is evidence which casts doubt on whether the dangerous drug which had been in the car boot of the Audi was put there by D2. Evidence reveals that D1 was higher in the hierarchy in this conspiracy. Both were of clear record before.
D2 has a stable job being employed by the government. D2 admitted to have made delivery on the previous night. As regards the quantity of drug he had delivered on that night, D2 mentioned in the interview an order means 24 ounces. There is no issue on voluntariness and that this has been said. D2 did not testify to support the assertion that by ounce he really meant gramme. I do not accept he had been mistaken.
The delivery was not necessarily to an ordinary drug abuser. That said, I must take it that what D2 said was only an estimate and it would have meant to be the gross quantity. I also have to take into account the quantity of narcotic in each packet of the dangerous drug actually found. In this connection, I note that the purity of the three batches of cocaine found was respectively in the region of 87 per cent, 72 per cent and 88 per cent. I will, in the course of the present exercise, take 70 per cent as the approximate purity of the drug involved in the conspiracy.
D2 mentioned he made deliveries to at least three places but exactly how many deliveries he had made is not known. From what he said, there must be at least four deliveries.
Further, I am satisfied from his admission that he had been actively engaged in activities connected with the conspiracy during that time. He said he had been working on orders until he was asked by D1 to return to the garage. That said, there were only six hours or so available to him. He started delivery at sometime after 5 pm and received the call from D1 to return to the garage sometime after 12 midnight.
D2 had also admitted to have gone to the garage under the instruction of D1 to bring a purple recycle bag and a suitcase to the AIA Tower. He found the key and gained entrance to the garage. He said when he found the purple recycle bag, he roughly took a glance and saw around 10 to 20 packets of substance which looked like the cocaine he had just delivered. He did not know how much dangerous drug was actually inside and he estimated that the bag weighed about 400 to 500 grammes.
He also found the suitcase. He said it was quite heavy. He did not know what was inside but he did see previously tools inside. He took these two items to AIA Tower and put them into the car hood of the Audi car.
As a matter of fact, dangerous drug was only found in the suitcase. There was no dangerous drug in the recycle bag. I accept that the chance that other people might have handled the items after D2 had left them there and therefore it might not be fair to hold D2 accountable to the actual drug found.
That said, I found I am entitled to take into account the admission of D2 to the effect that he followed the instruction of D1 to take the two items to AIA Towers. When he picked up the recycle bag, to his knowledge, dangerous drug was inside. In the circumstances, he still took the items to AIA Tower, thus demonstrating he was acting pursuant to the conspiracy and was prepared to traffic in the dangerous drug inside the bag.
The weight he mentioned, of course, was an estimate. It represented gross quantity and included the weight of the bag. However, it demonstrated that D2 was prepared to deliver a substantial quantity of cocaine in pursuance of the conspiracy. He would not have done so if what the situation disclosed was beyond what had been agreed between the two of them.
I also note the number of telephone calls made by D2 in these two days with the mobile phone which he said were used to contact customers. In the course I bear in mind that there is no concrete evidence that each call or the calls to a particular number must have been related to this conspiracy. I have also considered whether the conspiracy would have carried on if not for the intervention of the police.
D2 was arrested when he went to the garage again. There was nobody else in the garage. A large quantity of cocaine was concealed there. He said the drug belonged to D1. He also said that he went there to check for his car which was being repaired by D1. Whilst I am prepared not to hold D2 directly accountable to this batch of drug, this indicates the degree of trust D1 had on him and the act of D2 is inconsistent with the assertion that his conspiracy with D1 had ceased. My assessment is that D2 was a trusted partner of D1.
In all the circumstances, I am of the view that only a starting point of 10½ years will be sufficient in reflecting the culpability of D2 in this case.
D1 pleaded guilty before a magistrate, he gave a witness statement and indicated his willingness to testify against D2, and D2 pleaded guilty after D1’s witness statement had been served on him. In the circumstances, having regard to authority, including those submitted by the defence, I am of the view that D1 is entitled to a discount of 45 per cent.
D2 pleaded guilty at the first opportunity available and he is entitled to a one-third discount for this reason. Having considered the whole circumstances, including what learned counsel said on his behalf and what is said on his behalf in the mitigation letters, in my judgment this is the extent of discount D2 is entitled to.
So, defendants, please stand up. D1, Li Chi-wai, for the reasons I have mentioned, I sentence you to the following imprisonment terms: Charge 1, 11 years and 8 months; Charge 2, 8 years and 4 months; Charge 3, 12 years and 11 months. Having regard to the total quantity of the drug involved and the principle of totality, I order the sentences for Charge 2 and Charge 3 to run concurrently, with 2 years of these concurrent sentences to run consecutively to the sentence of Charge 1. You are to serve a total sentence of 13 years and 8 months for the three charges.
And D2, Fung Chun-man, I sentence you to an imprisonment term of 7 years.