HKSAR v. Kwok Kin Wing

HCCC 89/2023

[2024] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 89 OF 2023

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty in the Magistrate’s Court to one charge of “conspiracy to traffic in a dangerous drug” and was convicted. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.

2.The particulars of the offence avers that between 1 March 2021 and 24 July 2021, in Hong Kong, the defendant conspired together with a person known as “Tsai Tsai” and other persons unknown to unlawfully traffic in a dangerous drug, namely, cocaine.

3.The Summary of Facts are straightforward.  At about 6:37am on 24 July 2021, the police were conducting an anti-drug operation at a flat in Yeung King House, Lai King Estate, Kwai Tsing, New Territories (“the flat”)  with a search warrant.  As no one answered the door, the police entered the flat with force.  Upon entry, the defendant rushed out of the flat and was immediately subdued.  A search was later conducted at the flat.  Upon search, a total of 13 plastic bags of 41.53 grammes of a solid containing 37.59 grammes of cocaine and an electronic scale were found.  Four mobiles phones and two lots of cash of HK$47,690 in total were also found.  The defendant was arrested and cautioned. Under caution, he said he owed a debt of HK$200,000 and he could not repay so he helped others to deliver the drugs to customers for HK$400 each time.

4.Later in the morning, the defendant brought the police to the restaurant where he worked in Tsim Sha Tsui, Kowloon. The police used the keys seized from him to open his two staff lockers. Upon search of the lockers, a total of 52 plastic bags of 629.32 grammes of a solid containing 558.96 grammes of cocaine and an electronic scale were found in one of the lockers.

5.The defendant explained under caution that he helped others to deliver the drug for a reward of HK$4,000.

6.In the subsequent Video-Recorded Interview (“VRI”), the defendant further stated that in fact he owed a debt of HK$400,000 to HK$500,000 and he had to repay HK$20,000 to HK$30,000 per month.  He wanted to find a part-time job to earn quick money and his former colleague introduced him to a male called “Tsai Tsai” to deliver “coke” for a reward since March 2021. “Tsai Tsai” gave him a mobile phone for drug delivery. Upon receiving call from customers, he would pack and deliver the cocaine for them at a cost of HK$400 for each packet. The cocaine was given to him by others and he stored them in the flat or in the restaurant he worked. He usually collected 20 to 30 packets of cocaine each time and he would deposit the drug proceeds into a bank account as instructed.

Mitigation

7.The defendant is aged 49 and is still single. He received education up to Form 5 level.  He lived with his step-mother in the flat at the time of the offence. He was working as a manager in a Japanese restaurant at the time of his arrest earning HK$20,000 a month and he would contribute about HK$7,000 towards household expenses.  I was told that during the pandemic, his work and income had been negatively and seriously impacted.  Also, he had incurred a huge gambling debt which he could not repay.  He committed the offence to earn quick money in order to alleviate his financial difficulties.

8.Mr Wong, counsel for the defendant, told the court that after his arrest, the defendant was very co-operative and tried his very best to co-operate with the police investigation.  He made a detailed confession to the police and the details of the conspiracy was only revealed solely on the strength of his frank admissions made in the VRI.

9.The defendant is a man with a clear record. I have read and heard mitigation from Mr Wong who has said all he can say on behalf of the defendant in mitigation. The defendant’s best mitigation is his plea of guilty at the earliest opportunity.

10.Apart from pleading guilty, Mr Wong also relied on the assistance that the defendant had given to the police.  Although no one was prosecuted in the end, Mr Wong stressed however that the defendant intended to assist the police genuinely.  He cited HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 in which the Court of Appeal held that whether a discount in sentence would be awarded for information or assistance given by a defendant to the authorities depended on whether the assistance was “of practical use”. The term “of practical use” clearly encompassed the type of information which “could potentially assist or had actually assisted the authorities.”

11.It is submitted by Mr Wong that the information provided by the defendant could potentially assist the police investigation and for this, the defendant deserves some reduction. 

Sentencing

12.Trafficking in a Dangerous drug is a serious offence and the maximum sentence is life imprisonment and a fine of $5,000,000. Anyone who is convicted of this offence will be expected to be dealt with severely by the court. The court would never accept economic reasons for committing crime and over the years the Court of Appeal had made it clear that family circumstances virtually plays no part in mitigation in serious offences such as the present.

13.In this case, the total quantity of cocaine seized in the flat and the restaurant was 670.85 grammes with a purity of 596.55 grammes of cocaine. Based on the defendant’s admission in the VRI made on 24 July 2021, he further admitted to the police that he has in fact sold further quantity of cocaine in the period between mid-March and mid-July 2021. In the circumstances, both the prosecution and defence have agreed to add another 120 grammes of pure cocaine to 596.55 grammes of cocaine seized, making a total of 716.55 grammes.

14.The summary of facts reveals that apart from the cocaine stored in his flat and in the lockers of the restaurant, there was the presence of two electronic scales and also an amount of HK47,690 in cash.  The defendant also admitted in the VRI under caution that after selling the cocaine to the customers, he would deposit the proceeds of sale to a designated bank account.  I am satisfied therefore that the defendant was heavily involved in the packaging and selling of the dangerous drugs and as a consequence this heightened his culpability and his role was akin to an actual or direct trafficker and certainly more than that of a storekeeper or courier.  I am satisfied that his sentence has to be enhanced because of his role. Also, as this is a conspiracy charge and the conspiracy had lasted for more than 4 months and involved other co-conspirators, the sentence will also need to be further enhanced as well.

15.I would add the drugs seized by the police in the flat and the restaurant together during the operation and also the 120 grammes which the defendant admitted to have sold during the period together in order to consider a global starting point.

16.The Court of Appeal has held the tariff for trafficking in cocaine follows the tariff for trafficking in heroin (see AG v Pedro Nel Rojas [1994] 1 HKC 342). For this case, the total quantity involved is 716.55 grammes as stated. According to the tariffs that laid down in HKSAR v Abdallah [2009] 2 HKLRD 437, where between 600 to 1,200 grammes of cocaine is involved, this will attract a sentence of between 20 to 23 years’ imprisonment after trial. For the quantity of 716.55 grammes, the starting point should be 20 years and 8 months. Because of the more serious role played by the defendant and the fact that it is a conspiracy charge, I will increase the starting point by further 10 months to 21 years and 6 months.

Conclusion

17.I have considered the facts of this case, the quantity of the drugs, all mitigations, and the fact that the defendant pleaded guilty at the earliest opportunity.  The defendant is entitled to the usual one-third discount.  On top of that, I am prepare to take into consideration (1)  the defendant’s assistance to the police, and (2)  the particular circumstances of the case, where the police knew nothing of any conspiracy until the defendant admitted his own involvement in the VRI.  The overall discount would be 96 months which is about 37.2% (see HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799 para 48)

18.After that discount is applied to the starting point of 21 years and 6 months, the sentence is finally reduced to 13 years and 6 months’ imprisonment.

Mr. Isaac Guan, Public Prosecutor of the Department of Justice, for HKSAR

Mr. Wong Ting Kwong, instructed by H.Y. Leung & Co. LLP, assigned by DLA, for the Defendant