HKSAR v. Kwong Kam Hung

HCCC 36/2023

[2023] HKCFI 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 36 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of trafficking in a dangerous drug contrary to s4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 13 February 2023, before the Eastern Magistrates’ Court.

2.The relevant events occurred on 17 February 2022, when the defendant was stopped by the police on the podium of Tower 3B, Cullinan West, 28 Sham Mong Road, Sham Shui Po, Kowloon. Upon search of his backpack, the police recovered 1,910.83 g of methamphetamine hydrochloride (or ICE as it is commonly called), which was contained in two large plastic bags and each of those plastic bags had a very small plastic bag attached to it as if that smaller bag contained a sample of the drugs contained within the larger bag. These form the basis of Count 1.

3.The defendant was then escorted to a flat on 19/F of Tower 3B, to which the defendant had the passcode. He had been renting the Flat for some 3 months. The Flat was extremely sparsely furnished and did not look as if anyone lived there on a permanent basis. Within the flat the police recovered a further 2 rucksacks and a travel bag. Each of those bags contained several similar large plastic bags of ICE with a total narcotic content of 17,247.23 g. Mobile phones, scales and a sealing machine were also recovered although the defendant later denied possession of the scales or sealing machine and maintained they had been left in the flat at the time he took over the rental. This was denied by the landlord.

4.Upon arrest and cautioned on the podium and later in the Flat, the defendant admitted trafficking in the dangerous drugs recovered. He suggested that he had been working for someone called “Ah Lung”. He had rented Flat G in his own name from November 2021 but the rental was paid by Ah Lung and this was the very first time he had been instructed by Ah Lung to collect drugs for him. If correct, he collected 19 kg of drugs that day on his own and carried them in 2 rucksack type bags and a travel bag to the Flat, whereupon he separated off two plastic bags with just over 1,910 g of ICE and was leaving to deliver them to someone when he was stopped by the police. He was to be paid $2,000 for each bag he delivered and he had 20 bags in all.

5.The street value of the drugs recovered was estimated to be HK$10,643,352.

6.The defendant is 30 years old and single. He was born on the mainland but grew up in Hong Kong. He left school after form 3 and trained as a hairdresser. He worked as a hairdresser until 2021, at which time his career was affected by Covid-19. At the time of his arrest however he was reduced to being a casual worker earning approximately HK$5,000 per month. Not surprisingly, the defendant, like many others, suffered from depression and considerable financial difficulty during the pandemic. It was whilst in fallen circumstances the defendant was persuaded by others to store and deliver drugs. He is clearly remorseful and sorry for the effect his acts have had upon his family.

7.The defendant has a clear record and has no known drug habit.

8.The relevant sentencing guideline for the offence of trafficking in lesser quantities of ICE is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. These are however substantial quantities. For trafficking in larger quantities over 600g, the relevant sentencing guidelines are found in HKSAR v Abdallah [2009] 2 HKLRD 437.

9.Under Count 1, for trafficking in 1,910.83 g of ICE the starting point for sentence after trial is 23 years 9 months’ imprisonment. Under Count 2 for trafficking in 17,247.23g of ICE the starting point for sentence after trial would be 30 years 9 months. This was one enterprise, from which the drugs under Count 1 were subdivided off. The total quantity of drugs recovered was 19,158.06 g. That is some 4,000 odd grammes over the 30 year guideline set at 15 kg. The mathematical increase in guideline sentence between 4000 g to 15,000 g is approximately 1,375 g per 6 months. Whilst sentencing over 15 kg is a matter for the discretion of the Court, a calculation on this basis would point to a starting point for the whole of these narcotics of 31 years 6 months. That would be appropriate in the circumstances of this case.

10.I have taken into consideration what has been said on the defendant’s behalf but very many people were adversely affected by the pandemic and they did not choose to commit criminal offences. The trafficking of dangerous drugs is a very serious offence. There has been a worrying trend to deal in larger and larger quantities especially when dealing in ICE, which may require the Court of Appeal to revisit the current guidelines for sentencing.

11.Nothing else has been said which, at this stage, could warrant a more lenient course than would otherwise be the case and so the sentence which I pass, after a full one third discount for the defendant’s plea at the earliest opportunity, is one of 15 years 10 months under Count 1 and 20 years 6 months under Count 2 to be served concurrently with one another save for 6 months of Count 2, which will be served consecutively to Count 1, making a sentence of 21 years in total.

12.Forfeiture- Order in terms as amended.

Mr Raymond Chan, PP, on behalf of the Department of Justice, for the HKSAR

Ms Vivien Chan, instructed by Messrs KCL & Partners, assigned by the Director of Legal Aid, for the defendant