COURT: The defendant had pleaded guilty in the lower court to one count of attempting to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200. The particulars of the offence was that on 8 December 2021, in an industrial building in Tsuen Wan, together with a person known as ‘Zui’ and other person unknown, attempted to unlawfully traffic in a dangerous drug, namely, 106,810 grammes of cannabis in a herbal form.
The facts that has been admitted was that on 30 November 2021, customs officers had selected a container shipped from Canada by sea to Hong Kong. The logistics company was notified that the delivery was to be made to a Mr Cheung with an address in the car park of the Goodwill Industrial Building in Tsuen Wan and the telephone number for the person Mr Cheung to be contacted was 68452406. Customs officers found a total of 106,810 grammes of cannabis in herbal form inside that container.
The estimated street value of the drugs was HK$19,546,230.
On 8 December, after a person called Mr Cheung was contacted for delivery, the pallets were delivered to the lift lobby on the 7th floor of the industrial building. This was a controlled delivery operation and a customs officer was disguised as a courier. The defendant emerged from Room 7A and said he was Mr Cheung and stamped the delivery documents with the company chop of Agile. He also asked the customs officer, PW1, to deliver the remaining seven pallets of goods to the 7th floor lift lobby.
And subsequently PW1 did so and at 5.16 pm, PW1 who was the customs officer in disguise as a delivery person saw the defendant opening the outer packaging of pallet 1 with a cutter and immediately notified his teammates.
The customs officers who were waiting in the staircase on the 7th floor immediately came out and declared their identity to the defendant whereupon the defendant immediately fled towards Room 7A. He was then intercepted and arrested.
Under arrest and caution, he admitted that the goods were cannabis and he was responsible for receiving the goods and that he would be paid HK$5,000 for his work. Also found upon a search inside the room was a backpack containing a vacuum sealing machine, two electronic scales and a pack of vacuum sealer bags. The defendant also had possession of a car key and the car was parked in the car park of that Goodwill Industrial Building, and inside the car was found 12 backpacks and four packs of zip lock bags in the boot of the car.
Later investigation revealed that the defendant had rented the room at this Goodwill Industrial Tower for a period of two years commencing on 19 October 2021. Defendant was the sole director of this company Tin Shing in whose name the room was rented. There were four mobile phone seized from the defendant and in one phone was found to contain the SIM card for 68452406 telephone number.
And also from another phone, customs officers subsequently were able to download conversations that the defendant had on that phone with a person called Zui. Basically in those conversations, the defendant was telling Zui about how he was looking around for a suitable place in order to store the packets that would be received, the boxes that would be received. And in those conversations, this person called Zui also told the defendant that he was expected to unpack the stuff from the boxes and to repack them and vacuum pack them. Now, also found in one of the defendant’s phone were WhatsApp messages with the landlord of the room in the industrial building.
The defendant is aged 27 and he has a clear record. His only mitigation is the fact that he had pleaded guilty in the lower court. It is also submitted by Mr Yuen mitigation letter from his siblings asking for leniency and how he had a rather deprived background.
However, I noted that the defendant was 25 years old at the time he committed this offence. Many people grow up in deprived backgrounds who make a successful life for themselves. So it is not an excuse for him that he had a deprived childhood. Defendant chose this because he wanted to make easy money. He has no one to blame but himself. He is very lucky that his siblings still stand by him in writing this letter. Drug trafficking is a very evil offence. It causes many suffering to families of addicts.
Now, as far as sentencing is concerned, the Court of Appeal has laid down guidelines in the case of Nguyen Thang Loi in 2023 and reported at [2023] 1 HKLRD 1329. The Court of Appeal after going over all the sentencing in reference to herbal cannabis and cannabis resin and its effect determined as their guideline that for over 90,000 grammes, 120 months or above is recommended as a starting point after trial.
However, as Mr Yuen helpfully pointed out, this case of Nguyen was after the commission of the present offence and so the guideline as mentioned in the case of Tuen Shui Ming in 1995 was the one which was enforced when this offence was committed. However, that guideline was only for cannabis resin or herbal cannabis of over 9,000 grammes. It was recommended that a sentence of 4 years and upwards was reasonable. So for the large amount in this case, the sentencing is really a matter of discretion for the court.
As Mr Yuen pointed out, it has always been said that even if there are guidelines, they should not be viewed as straitjackets for a sentencing court and the court has to take into account the facts of the case and everything pertaining to the individual case before it in order to assess a proper sentence.
This is a case, a very serious case, of a large quantity of herbal cannabis imported from Canada and I, having looked at all the evidence in this case, consider therefore that a proper starting point would be 10 years’ imprisonment.
As far as the international element is concerned and its enhancement, it is without a doubt that an enhancement is necessary. I do recognise the fact that this is an importation by mail distinct from someone bringing it over on his person. I consider therefore in all the circumstances, an enhancement of 1 year is appropriate.
Now, as far as the discount is concerned, of course the defendant is entitled to his one-third discount for his early plea. I do not consider that he deserves any other discount and the fact that also it is clear from the evidence that he is more than a courier in this case. He had a position of authority in that he scouted for premises in order to store the dangerous drugs and he was going to unpack the goods from the boxes and repackage them in vacuum packed bags.
So you will go to prison for 7 years and 4 months.
