The particulars of the 1st charge are that all three conspired together to unlawfully traffic in heroin hydrochloride.
The 1st defendant pleaded not guilty to a 2nd charge of trafficking in a dangerous drug on 9 July in domestic premises in Primrose Hill, New Territories. The particulars are that he unlawfully trafficked in a dangerous drug, namely, 114.13 grammes of a mixture containing 94.38 grammes of heroin hydrochloride.
After trial, the jury unanimously convicted both defendants of Charge 1 and the 1st defendant of Charge 2.
The facts of the conspiracy charge, Charge 1, centred around a shipment of heroin weighing about 3½ kilogrammes from Malaysia destined for Hong Kong. Answering an advertisement for fast cash or fast money, and after speaking to a man called Carson, Tse agreed to open an account at a business centre offering a virtual address in order to provide a recipient and an address for this shipment of heroin. He would also, as part of his role, collect the shipment when it arrived in Hong Kong. He knew it would contain drugs and would have been paid about $6,000 per kilogramme. He was desperate for money and agreed with Carson to take the risk of putting his name on a parcel and collecting it to deliver as directed to anybody or somebody in Hong Kong.
To facilitate the business centre account procedure, Tse was met by the 2nd defendant on 2 July in Hollywood Plaza, Mong Kok. It was the 2nd defendant who gave him $800 to open the business centre account and an email address to give the business centre. The practice of the centre was to email the client at the email address provided whenever post or a parcel arrived at their address for that client. The 2nd defendant had telephoned Tse to make arrangements to meet that day and over the phone, Tse asked him if he knew what type of drugs he would be collecting. The 2nd defendant told Tse that he did but he had best ask Carson if he wanted those details.
After the account had been opened, there was a gap of seven days before a parcel arrived containing a water dispenser addressed to Tse at the business centre. The 2nd defendant called Tse that day and said that parcel could be collected and arranged to meet him again. The plan was that Tse would go into the business centre, sign and collect the parcel before taking a taxi to a cafe in Kwai Chung where he would call the 2nd defendant when he arrived.
The 1st defendant met up with the 2nd defendant on that day and travelled to Hollywood Plaza together. He was to be the one who would collect the parcel from Tse. At Hollywood Plaza, only the 2nd defendant went up in the lift with Tse. However, he did not go in the business centre with Tse. In fact, he went up one more floor, I am sure to keep a good distance from Tse in case law enforcement were waiting for the recipient. Tse had got out of the lift on the 18th floor where the business centre was located and the 2nd defendant went to the 19th floor. He must have gone down the staircase because he appeared on the 18th floor a full five minutes after the parcel had been collected and Tse had left.
The movements of the 2nd defendant and Tse were captured by CCTV cameras on both dates, 2 and 9 July. There were cameras in the lifts and the corridors as well as in the offices of the business centre. The presence of the 1st defendant at Hollywood Plaza on 9 July was captured also by CCTV camera at the ground floor lift lobby area. He is not seen with the 2nd defendant together but seen exiting the area following closely behind the 2nd defendant.
The 1st and 2nd defendants followed Tse’s taxi in a separate taxi. In fact, there were members of the Narcotics Bureau also following Tse’s taxi. They had had the Hollywood Plaza building under surveillance.
On the way to Kwai Chung, Tse received a phone call from the 2nd defendant telling him to go to Belvedere Garden in Tsuen Wan instead. He was to go to McDonald’s in Belvedere Plaza and wait. Both defendants arrived there by taxi after Tse, both entered the plaza, but only the 1st defendant approach Tse in McDonald’s to take the parcel. The 2nd defendant maintained his distance, watching the exchange from some distance away. The 1st defendant took the parcel back to the 2nd defendant and they left together. They hailed a taxi, put the box in the boot of the taxi, but before the taxi could leave, the police surveillance operation turned overt and they were arrested. Tse was also arrested after he left the plaza.
Under caution, the 1st defendant and Tse admitted knowing the parcel contained drugs and being paid for their part in the conspiracy. They further elaborated on their knowledge and roles in video-recorded interviews. The 2nd defendant did not admit knowledge of the drugs under caution at the scene or later in a video-recorded interview.
The facts of Charge 2 are straightforward. After the 1st defendant was arrested and gave his personal particulars to the police, a house search was mentioned and he told the police that there were some drugs at home, but they were for his own consumption. The police then took him home to Primrose Hill based on that admission whilst Tse and the 2nd defendant were taken to the nearest police station to report to the duty officer there as procedurally required before returning to the Narcotics Bureau offices.
Five packets of heroin hydrochloride were found in transparent resealable plastic bags in a black plastic bag in a cupboard above the television in the living room of the 1st defendant’s premises. He was the sole tenant and had rented the premises about a month before his arrest. There were also three small electronic scales and a bag sealer machine seized, all items commonly used for weighing and packaging drugs.
The 1st defendant denied making any admissions in relation to either the 1st or 2nd charge, and accused the police of assaulting, threatening, inducing and oppressing him. His statement and video-recorded interviews were challenged. The 2nd defendant did not make any admissions but similarly challenged his statement and video-recorded interviews for similar reasons.
I will say here that there was a voir dire conducted prior to the trial proper. I found the prosecution had proved beyond reasonable doubt the voluntariness of the post-recorded statements and the video-recorded interviews.
Both defendants elected to give evidence during the trial. The 2nd defendant had to tailor his defence to explain away the CCTV footage of him with Tse on two separate dates as well as evidence such as the telephone records between his phones and that of Tse on 9 July prior to Tse collecting the parcel of drugs and after. Similarly, the 1st defendant had to tailor his defence to explain his presence at both Hollywood Plaza and Belvedere Plaza on 9 July, his conduct of physically collecting the box from Tse captured on CCTV and the drugs found at premises rented in his name. The jury obviously rejected their evidence.
Mitigation
The 1st defendant was 22 years old at the time of the offences. He was educated up to Form 5 level and after school worked in several jobs, but was a cook or a chef before his arrest.
The 2nd defendant was 18 years old at the time of his arrest, and educated up to Form 4 level. He was young, but he cannot be classified as extremely young for the purposes of sentencing. After school, he worked as a waiter, in a kitchen, in a hair salon and apparently was unemployed at the time of these offences. His parents are divorced and he lives with his father, but his father mainly resides in the mainland.
There is not much that either counsel for the defendants, Mr Fung or Mr Tse, can say with offences this serious. Both have been convicted after trial. Nevertheless, they have said all they can say on behalf of the defendants. Both men had clear records.
Sentencing
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life.
I have taken into account the latest authority relating to sentencing the offence of trafficking as laid down in HKSAR v Herry Jane Yusuph [2020] HKCA 974. I have considered the six-step sentencing approach taken from that authority.
In this case, I accept and am satisfied that the 1st defendant can be categorised as a courier and a storekeeper. In reality, there are different degrees of culpability for even couriers or drug mules. I suspect that the premises rented in his name were for the purposes of dealing with and storing and repackaging drugs. I have no evidence of his role or job once the drugs were taken to those premises. I do not know if he weighed and repacked heroin alone, at all or even with others.
I am satisfied that the 2nd defendant can also be categorised as a foot soldier. The description of him being an organiser on the ground level appears very apt. However, I would not go as far as categorising him as an actual trafficker or a manager above the actual trafficker. He is a foot soldier on a par with a courier and storekeeper for the purposes of categorisation in this case.
Therefore, according to that authority, their sentences are to be determined by the relevant tariffs and the quantity of dangerous drugs involved. Although Charge 1 is a conspiracy offence, we do have the exact amount of heroin trafficked， there was 3,508 grammes of a mixture containing 3,012 grammes of heroin.
The authority of The Queen v Lau Tak Ming and Others [1990] 2 HKLR 370 sets out the Court of Appeal guidelines for trafficking in heroin. However, it does not cover such a large quantity of heroin as in this case. The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of narcotics. The Court of Appeal has decided that where between 1,200 and 4,000 grammes is trafficked, the starting point should be between 23 to 26 years’ imprisonment.
Here, mathematically speaking 3,012 grammes of heroin hydrochloride of Charge 1 will attract a starting point of 24 years and 11 months’ imprisonment.
The drugs of Charge 2 totalled a purity of 94.38 grammes of heroin which according to the same sentencing authority would mathematically attract a starting point of 9 years and 2 months.
The 1st defendant faces two charges. He was arrested on the same day for both. These two charges both relate to trafficking in dangerous drugs and the same drug. I shall first sentence individually for the two charges, then take a global approach and give the 1st defendant a total sentence. Therefore, I will take a global approach whilst considering the principle of totality.
If I add the drugs of Charges 1 and 2 together, the total would be 3,106.38 grammes of heroin, and mathematically will attract a sentence of 25 years and 1 month’s imprisonment, 2 months more than the starting point for the drugs of Charge 1 alone.
Lastly, does the fact the drugs came from Malaysia mean an enhancement for an international element for either defendant. There is nothing in the conversations repeated by the co-conspirator, Tse to say they discussed the origin of the drugs in the parcel. There is no evidence the defendants knew the drugs came from Malaysia. The mere fact the drugs did come from overseas does not always mean an enhancement. These were not defendants who physically imported or exported drugs across borders.
I am of the view that in this case there should be no aggravating factor for the drugs coming from Malaysia, and I see no other aggravating factors to consider.
For Charge 1, having considered the authorities, the facts of the case here, both of the defendant’s respective roles, the quantity of drugs and everything said in mitigation, I find the huge amount of heroin here, 3,012 grammes, will attract a starting point of 24 years and 11 months for both of the defendants.
For Charge 2, I find a starting point of 9 years and 2 months’ imprisonment appropriate. There are no other factors or mitigation for either defendant that the court can take into account for purposes of sentencing or a reduction in those starting points.
I have taken into account the sixth and last step of the Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offenders to ensure that it is not a crushing sentence. This would be particularly relevant to cases involving multiple offences or where there are several aggravating factors which may mean multiple enhancements. In this case, there are no aggravating factors.
Here, in approaching this principle, I have weighed it against the sentence of 24 years and 11 months’ imprisonment, the quantity of the drugs and the facts of the case. Standing back, it is a very significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, the 1st defendant is, for Charge 1, sentenced to 24 years and 11 months’ imprisonment.
The 1st defendant is, for Charge 2, sentenced to 9 years and 2 months’ imprisonment.
I will order 2 months of this sentence to be served consecutively to Charge 1 and the balance concurrently.
Therefore, the 1st defendant is sentenced to a total of 25 years and 1 month’s imprisonment.
The 2nd defendant is, for Charge 1, sentenced to 24 years and 11 months’ imprisonment.