COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 before a magistrate and was committed to the Court of First Instance of High Court for sentence.
The Summary of Facts shows that on 18 August 2020, an inbound air consignment originated from the USA was brought by UPS staff to the Customs Import Cargo Examination Hall of the Hong Kong International Airport for Customs clearance.
On the airway bill of the consignment, the consignee was stated to be Wong Master Sutthichai, that is the full name of the defendant, of “Workshop” at the address of Room M, 16th Floor, Kinho Industrial Building, No. 14-24 Au Pui Wan Street, Fo Tan, New Territories, with a contact number it is 6537 dot dot dot dot, I would not mention the whole number.
So upon examination, the consignment was found to contain four carton boxes wrapped together by cling films. Each of the carton boxes were found to contain one black metal box wrapped by Styrofoam and transparent plastic bag. The top surface of each of the black metal box was fixed by screws. Upon removing the top panel of each of the four black metal boxes, it was found that there were a total of 120 packets containing substance, which was subsequently examined and certified to be a total of 58.605 kilogrammes of cannabis in herbal form in the four black metal boxes.
So a controlled-delivery operation was conducted in the afternoon of the same day, during which a Customs officer, disguised as a staff member of a transportation company, went to the premises stated in the airway bill. The defendant confirmed he was the Mr Wong and the waybill number shown on the consignment, and he acknowledged the receipt of the consignment by signing on a copy of the delivery sheet and collected the consignment.
So immediately after the defendant had received the consignment, the Customs officer revealed his identity, arrested and cautioned the defendant for the offence of trafficking in a dangerous drug. Under caution, the defendant remained silent.
The defendant was brought back to the premises for investigation and a search was conducted on the defendant there, and upon search there was a smoking pipe containing traces of a solid containing tetrahydrocannabinol, being a tetrahydro derivative of the cannabinol, was found in the right pocket of his trousers. He also had a mobile phone with two SIM cards.
So there was a search in the premises and there were four black metal boxes which looked similar to those found in the consignment, on the floor of the premises. On top of one of the black metal boxes, the following items, inter alia, were found: there are some coins, one lighter, a cutter, six rolls of transparent adhesive tape and a chain of keys, a padlock and an extra hex key. There were also some empty carton boxes and used packing materials on the floor.
The defendant was a tenant of that premises for a period of two years commencing from 6 May 2020 at a monthly rent of $7,800.
So preliminary screening was conducted on the mobile phone seized from the defendant with his consent and on the strength of a search warrant. Upon inspection, there were suspicious WhatsApp messages between the defendant and other parties being found in the mobile phone, the contents of which related to the selling of herbal cannabis from the defendant to the parties and the selling price per gramme. Images resembling herbal cannabis and inhaling devices were sent from the defendant to these parties.
The estimated street value of all the herbal cannabis seized was about HK$12,541,470.
The defendant admitted that at the material time he unlawfully trafficked in all the dangerous drug seized.
The Background and Mitigation
According to the antecedents statement, the defendant was born in Thailand in 1998 and he is a Hong Kong resident. He had a clear record. He claimed to have studied up to Secondary 3 and is single. He worked in a hair salon as a junior, earning about $10,000 per month. According to the urine test report provided by the CSD, the defendant was tested positive for cannabis.
Mr Victor Cheung, counsel for the defendant, gave this Court more information on the defendant. The defendant’s father is a retired merchant and mother a housewife. He had an elder brother who worked in a café and a younger sister who is a student. Prior to the defendant’s arrest, the defendant regularly paid pocket money in the sum of $1,000 to $2,000 to his parents.
Mr Cheung submitted that the defendant committed the present offence due to financial difficulties as his father was in debt and he wanted to earn quick money to help his father make repayment. The defendant foolishly agreed with a friend’s suggestion to rent a premises for dealing with dangerous drug. The defendant would have a reward of $20,000 if the dangerous drug in question was sold.
In mitigation, Mr Cheung stressed that the defendant pleaded guilty at the earliest available opportunity. The defendant never received any reward for the unlawful trafficking.
The defendant himself wrote to this Court expressing his remorse and willingness to shoulder the responsibility for transgressing the law. He claimed he had learnt a lesson. He promised to lead a law-abiding life upon release and to be a filial son without hurting his family anymore.
The Sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to imprisonment for life and to a fine of $5 million.
The drug involved is herbal cannabis and the quantity is large, 58.6 kilogrammes. From the Admitted Facts, it is clear that the defendant was an importer and dealer of this drug.
In the case of the Attorney General v Tuen Shui Ming & Another, it was held that the tariff for possession of under 2 kilogrammes of cannabis resin for the purpose of unlawful trafficking was up to 16 months’ imprisonment. The Court of Appeal commented that cannabis resin had an average concentration of tetrahydrocannabinol about four times higher than average found in herbal cannabis and that a sentencing judge must adjust the tariff when dealing with herbal cannabis.
So on a strict mathematical approach, if herbal cannabis is four times weaker than the resin, then the benchmark tariff sentence should be 4 months for under 2,000 grammes, that is 2 kilogrammes, of herbal cannabis.
So using 4 months for every 2 kilogrammes as a benchmark, the trafficking of 60 kilogrammes is 30 times more than 2 kilogrammes, so it will attract a starting point of 10 years, 4 times 30 equals to 120 months. However, I do not think it fair or proper to directly multiply the quantity involved to reach a starting point.
Now, in the case of Touray Edrisa and Others, the Court of Appeal dealt with, inter alia, the appeal against sentence by two defendants, they are D3 and D4.
D3 pleaded guilty to trafficking 30.20 kilogrammes of cannabis in herbal form before the trial judge, and the trial judge adopted a starting point of 6 years in relation to D3, giving him one-third discount for his plea though late, and sentenced him to 4 years’ imprisonment. But the role played by D3 was that he had gone to the hotel together with D4 to collect the two suitcases containing dangerous drug, which had been intercepted by Customs officers when they were brought in by other accused, that is, D1 and D2. And they were taken to the hotel room waiting for collection, with Customs officers laying in ambush and D1 willingly had assisted the authorities.
In relation to D3, the Court of Appeal found that his role was crucial, creating the link between the importer of herbal cannabis, so that distribution could be affected. The Court of Appeal further said that the judge was entitled to treat as she did the gravity of conduct on the same basis as that of the physical importer. The Court of Appeal dismissed D3’s appeal. It should be noted that the trial judge treated these three on the same basis of the importer. There was no mention of any enhancement for the international element involved.
In the case of D4, he was found guilty of trafficking in a dangerous drug after trial and possession of 0.6 grammes of herbal cannabis. There was no evidence when and how D4 came to be in Hong Kong. The trial judge treated him as someone recruited locally and adopted a starting point of 5½ years. And for the possession charge, after learning that D4 did not have money to pay a fine, the trial judge sentenced him to 2 months’ imprisonment. In fact, I do not think I really need to worry about that part. Forget about the possession charge because originally I thought that the defendant was also to be sentenced on possession before me until later I realised I only have to deal with the trafficking. So I will not worry about that.
The starting point was 5½ years for this D4 and the Court of Appeal allowed the appeal on the basis that the starting point of 5½ years did not adequately reflect the disparity between D4’s role and that of D3. D4 played a very subordinate role in the events inside the hotel.
In the case of Nguyen Trong Thigh, the defendant pleaded guilty to two counts of trafficking a total of 60.6 kilogrammes of herbal cannabis. The trial judge was of the view that a starting point of 7 years for such a quantity was proper.
So purely on the quantity of the herbal cannabis involved, I am of the view that a starting point of 7 years is appropriate here.
I now have to consider the role of the defendant to see if this starting point should be adjusted upwards.
From the Admitted Facts, the defendant was actively involved in the importing and storage of a large quantity of herbal cannabis. Since the trafficking involved an international element, the starting point need to be enhanced to take into account this aggravating factor. So having considered the role of the defendant, scale of the operation, I am of the view that an enhancement of 2 years is appropriate.
With the enhancement, the starting point would be 9 years.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.
I do not see any other grounds to reduce the sentence. Financial difficulties and the wish to make quick money cannot amount to mitigating factors. The remorse of the defendant is already reflected in the one-third discount.
So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 6 years’ imprisonment.