HKSAR v. Ng Kwan-ming

DCCC 608/2021

[2021] HKDC 1543

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 608 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded to two counts of dealing with goods to which the Dutiable Commodities Ordinance applies, contrary to sections 17(1)  and 46(3)  of the Dutiable Commodities Ordinance, Cap 109. That is Charges 1 and 3. He has also pleaded to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. That is Charges 2 and 4.

Particulars of the Charges and Summary of Facts

2.These offences came to light and the defendant was arrested on 1 February 2021 when customs officers carried out an anti-illicit cigarette operation in Yuen Long, New Territories.

3.They saw the defendant driving out of a scrapyard in a light goods vehicle and alight to lock the gate behind him.  He looked nervous and suspicious, so the customs officers intercepted him.

4.His vehicle was searched and some opened carton boxes were found in the vehicle containing a total of 42,400 sticks of cigarettes of assorted brands, the particulars of Charge 1.

5.Under caution, he said that he had taken cigarettes out of the scrapyard to deliver to others.  He knew that duty had not been paid for these cigarettes.

6.Customs officers also found in various places inside the vehicle a total of 43 transparent resealable plastic bags containing cannabis in herbal form.  The Government chemist later confirmed there was a total of 177.96 grammes of cannabis in herbal form, the particulars of Charge 2.

7.Under caution, the defendant told the customs officers that the drugs were “grass”, which he knew meant cannabis.  He denied possession of the cannabis.

8.Two more keys were found in the defendant’s trouser pocket and he told the customs officer that one key opens the gate of the scrapyard and the other the entrance to a yellow container inside the scrapyard.

9.Upon entry, customs officers found a large number of cigarettes inside the yellow container.  There was a total of 626,160 sticks of cigarettes of assorted brands and none of the packaging bore the HKSAR health warning, which meant duty had not been paid on those cigarettes.  These are the particulars of Charge 3.

10.Under caution, the defendant admitted that he had bought the cigarettes from another to sell.  He knew that duty had not been paid.

11.Customs officers also found a key to a locked white container inside the scrapyard and opened it to discover a very pungent smell of cannabis.  Inside various boxes, they found many transparent resealable plastic bags and plastic vacuum packing bags containing a total of 9,982.2 grammes of cannabis in herbal form, as well as a box containing 172 metallic containers containing a total of 79.36 grammes of a liquid containing 74.78 grammes of tetrahydrocannabinol, being a tetrahydro derivative of cannabinol.  These are the particulars of Charge 4.

12.With the 172 metallic containers of cannabis oil were 101 vape pens in the same box.  Inside the white container were also bundles of plastic bags and transparent resealable plastic bags, as well as two electronic scales, one heat sealer, four rolls of plastic tape and two pairs of scissors.

13.Under caution, the defendant said that he did not know who owned the herbal cannabis or the cannabis oil; both the yellow and white containers were rented by his bosses from the mainland.  He had taken the herbal cannabis found in his vehicle from the white container to deliver as directed. 

14.There was no dispute that the defendant had rented the light goods vehicle from its registered owner since June 2020 and he had the only key. 

15.It was agreed that the value of the total amount of cigarettes from Charge 1 and 3 was $1,871,968 and the potential duty payable was $1,274,275.36. 

16.It was also admitted that the total estimated street value of cannabis in herbal form from Charges 2 and 4 was $1,991,391.

Mitigation

17.The defendant is now 57 years old and was born in Hong Kong.  He has been married twice and has two adult children from his first marriage and a 13-year-old son from his second and present wife.  He is largely financially responsible for them all, including his ex-wife who has severe health problems and is unable to work.  He is also financially responsible for her 90-year-old mother.

18.The defendant is not a man with a clear record. He has a total of 14 previous convictions obtained over 13 court appearances. He has many gambling convictions from the 1980s but the more serious convictions include five similar convictions to Charges 1 and 3, dealing with goods to which the Dutiable Commodities Ordinance applies.  On each occasion, he was sentenced to terms of imprisonment.  Those convictions are dated 2012, 2017 and 2018.

19.The defendant has written a letter of mitigation asking for leniency.  He said he had only agreed to deliver cigarettes at the beginning when offered the job.  Later when he was offered more money for delivering cannabis, he was greedy and agreed to do it before he was caught red-handed. He gave me details of his financial responsibilities to his family.  He has said he is remorseful and those that suffer most from his misdeeds are, sadly, his family.

20.Mr Davies has said all he can say on behalf of the defendant.  His best mitigation is his pleas indicated at the earliest opportunity.  The defendant says that he was recruited as a delivery man originally to deliver cigarettes but he was later persuaded to deliver cannabis for more money.  He says he is not the mastermind of the scheme but a foot soldier.  There does not appear to be any evidence that he was the mastermind. He was earning about $20,000 a month working as a delivery driver when he was arrested.  Mr Davies confirms he supports both families but his present wife does work as a saleslady.  I have been told to take into account he has no previous convictions for drug related offences.

21.Mr Davies has submitted that there are no specific guidelines for Charges 1 and 3, but obviously, the number of cigarettes and the amount of lost revenue in the form of duty is relevant to the gravity of the offences.  I am reminded that the maximum sentence for this offence is 2 years’ imprisonment and a fine of HK$1 million.

22.It is submitted that the approximate starting point for quantity of cannabis resin in excess of 9,000 grammes is 4 years’ imprisonment.  It has been suggested that this starting point is adjusted down to take into account the fact that the cannabis is in herbal form.  A discount of up to 1 year can be appropriate.

23.I was referred to Attorney General v Tuen Shui Ming & Another [1995] 2 HKCLR 129.  I have also taken into account R v Chan Shu Tong [1996] 4 HKC 515.

24.The other substance in Charge 4 I take into account is cannabis oil.  Mr Davies agrees that there is an increased concentration in cannabis oil when compared to cannabis resin.  The concentration of tetrahydrocannabinol is highest in cannabis oil when compared to both cannabis resin and cannabis in herbal form.  In fact, cannabis oil has an average of about 4 times higher concentration of THC, tetrahydrocannabinol, than the average in cannabis resin.  Therefore, tariffs should be adjusted accordingly for herbal cannabis or cannabis oil.

25.It is submitted that the sentence for this quantity of cannabis oil would still be within the discretion of the court and it should not make any significant difference to the overall starting point for Charge 4 of 4 years.

Reasons for Sentence

26.I have taken into account everything said in mitigation on behalf of the defendant, his previous similar convictions, the facts of the case, including the number of cigarettes, the duty that should have been paid, as well as the quantity of drugs found, this also includes the value of the drugs found.

27.Drug trafficking is a serious offence and deterrent sentences are appropriate.  Here, I agree that the starting point of 4 years’ imprisonment would be appropriate for the drugs of both Charges 2 and 4.  It has been said that a discount up to 1 year could be given in cases involving herbal cannabis.  I would have given a discount up to 1 year but for the cannabis oil, 74.78 grammes of it.  It has a much higher concentration of THC and should be taken into account.  Having considered the quantity of that cannabis oil and the quantity of herbal cannabis, I intend to reduce the starting point of 4 years by 9 months to reflect that amount of cannabis oil.

28.I appreciate that there are 2 drug charges and the drugs of Charge 2 involve 177.96 grammes of cannabis, but I will make both charges concurrent to reflect the overall starting point of 3 years and 3 months.  I intend to take a starting point of 12 months for Charge 2 and 3 years and 3 months for Charge 4.

29.As for the cigarettes, Charges 1 and 3, I will also make both charges concurrent and consider the total amount of cigarettes from both charges.  That amount of cigarettes, their value and the duty that should have been paid will attract an overall starting point of 18 months’ imprisonment.  I intend to take a starting point of 6 months for Charge 1 and 18 months for Charge 3.

30.The defendant has pleaded guilty at the earliest opportunity and will benefit from a one-third discount.  After that discount is applied, the defendant is sentenced as follows:

Charge 1, 4 months’ imprisonment;

Charge 2, 8 months’ imprisonment;

Charge 3, 12 months’ imprisonment;

Charge 4, 2 years and 2 months’ imprisonment.

31.I have to take into account the totality principle.  All 4 offences took place on the same day and in the same location but the nature of the 2 types of offences is very different.  To make all 4 sentences totally concurrent would ignore that fact.  To reflect the gravity of the offences and the facts, I intend to make the 4 months of Charge 1 consecutive to the 2 years and 2 months of Charge 4.  All other sentences concurrent to Charge 4.

32.Accordingly, the defendant is sentenced to a total of 2 years and 6 months’ imprisonment.