HKSAR v. Au Yeung Lam

DCCC 388/2023

[2024] HKDC 232

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 388 OF 2023

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REASONS FOR SENTENCE

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1.Mr Au Yeung[1] pleaded guilty before me to two charges of Trafficking in a dangerous drug, contrary to section 4(1)(a)  of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that he, on 10 October 2022, at the staircase, 1^st Floor, Nos 92-94 San Hong Street, Sheung Shui, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 308.16 grammes of cannabis in herbal form.

3.Particulars of Charge 2 are that he, on the same day, at Flat B, Front Tower, 2^nd Floor, No 92 San Hong Street, Sheung Shui, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 12,528.34 grammes of cannabis in herbal form.

Facts admitted by Mr Au Yeung

4.On 10 October 2022, at about 5:22 pm, Mr Au Yeung was walking down the staircase at 1^st floor, Nos 92-94 San Hong Street, Sheung Shui.  He was carrying a bag (“the Bag”)  which contained some bulky items.  When he reached street level, he looked around and scurried along San Hong Street towards the direction of No 96 San Hong Street.

5.Police constable PW1 saw what happened.  He intercepted Mr Au Yeung at No 96 San Hong Street for a search.  At Mr Au Yeung’s request, the body search was conducted at the staircase from where he came.

6.Upon search of the Bag, 10 larger re-sealable bags with handwritten markings containing 308.16 grammes of cannabis in herbal form were found.  The cannabis in each of the said larger re-sealable bags were packaged in 1-2 smaller re-sealable plastic bags.

7.Cash of $6,400, one mobile phone and 4 keys were found in Mr Au Yeung’s right trouser pocket.

8.Under arrest and caution for Trafficking in a dangerous drug, Mr Au Yeung admitted he was delivering the cannabis for monetary reward.

9.Later, at 5:30 pm the same day, the police and Mr Au Yeung attended a nearby address ie the address under Charge 2 (“the Flat”).  Using two of the keys found from Mr Au Yeung, the police opened the metal gate and wooden door of the Flat. There was no one in the Flat.

10.The Flat was searched on strength of a search warrant.  Upon search, various bags (bearing handwritten markings)  containing a total of 12,528.34 grammes of cannabis in herbal form were found in the two refrigerators inside the Flat.

11.In addition, three digital scales, one electronic heat sealer, a packet of empty re-sealable plastic bags, a stack of brown bags, a pair of scissors, a marker and a bottle of air freshener were found inside the Flat.

12.Under caution, Mr Au Yeung admitted he took all the cannabis found by the police from a park to the Flat for one ‘Ah Lung’ for monetary reward.

13.In the subsequent cautioned VRI, Mr Au Yeung said that:-

(a)  He was unemployed;

(b)  He resided in Sheung Shui with his parents;

(c)  He was instructed by his friend ‘Ah Lung’ to deliver cannabis to the disabled toilet of Sheung Shui Garden for monetary reward;

(d)  Ah Lung was the person who gave him the keys to the Flat;

(e)  He purchased the packaging paraphernalia found at the Flat on Ah Lung’s instructions; and

(f)  The digital scales found in the Flat were used by him for weighing cannabis when he packaged the cannabis.

14.The estimated street value of all the cannabis found was over $2.2M.

15.Mr Au Yeung now admits he possessed all the dangerous drugs in this case for the purpose of trafficking.

Criminal record

16.Mr Au Yeung has a previous clear record.

Antecedents

17.Mr Au Yeung is aged 25 (23 at the time of the offences), educated to F5 level, unemployed at the time of arrest.  Mr Au Yeung lived with his parents (aged 70 and 50 respectively)  in public housing in Sheung Shui.

Mitigation

18.Mr Robert Chan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Au Yeung.  The following is a summary of the mitigation submissions.

19.Mr Au Yeung was born in 1998 in the Mainland.  He moved to Hong Kong in 2007 and was educated to F5 level here.  During the COVID pandemic, he became mostly out of work.  From around the start of 2022, he resumed his previous work as a casual worker in the construction industry and earned about $8,000 to $10,000 a month.  He was however unemployed on the date of his arrest.

20.Mr Au Yeung has a clear record.

21.In addition to that part of the cautioned VRI recorded in the Amended Summary of Facts, Mr Au Yeung told the police:-

(a)  He had encountered Ah Lung only a couple of days prior to day of arrest;

(b)  He would be paid $1,000 for each trip he made from the Flat to the disabled toilet of Sheung Shui Garden;

(c)  He was instructed to deliver around 400 grammes of cannabis each time and he would be paid cumulatively at the end of the week;

(d)  He spent about an hour at the Flat each day to pack the cannabis before leaving to go to Sheung Shui Garden; and

(e)  By the time of the arrest, he had made 4 such trips to Sheung Shui Garden but he has not yet been paid for them.

22.Mr Au Yeung is very remorseful and pleaded guilty.  He is determined to turn over a new leaf and promises not to re-offend.  He intends to resume gainful employment and to support his parents again, especially his wheelchair-bound father.

23.Mr Au Yeung asks for the court’s leniency emphasizing his timely plea.

24.The Court of Appeal in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 revised the guidelines laid down in Attorney General v Tuen Shui Ming & Anor [1995] 2 HKCLR 129 for trafficking in cannabis resin.  The effective date was 20 January 2023.

25.This case was committed on 10 October 2022; hence the Tuen Shui Ming guidelines (with the necessary downward adjustment for cannabis in herbal form)  apply.

26.Mr Chan then referred to a number of District Court sentencing cases on trafficking in herbal cannabis to illustrate the application of the Tuen Shui Ming guidelines.  They are:-

(a)  HKSAR v Cheung Chi Hin & Anor [2022] HKDC 1110;

(b)  HKSAR v Qin Gaoyun & Anor [2019] HKDC 1689;

(c)  HKSAR v Hung Chung Kuen [2020] HKDC 433; and

(d)  HKSAR v Wong Ka Ho [2022] HKDC 568.

27.Essentially by relying on Cheung Chi Hin and Qin Gaoyun, on Charge 2, Mr Chan suggests an initial starting point of no higher than 51 months’ imprisonment. Mr Chan seeks a reduction of 12 months on account of the drug being in herbal form.  The final starting point, submits Mr Chan, would therefore be 39 months.

28.On Charge 1, by relying on Hung Chung Kuen, Mr Chan suggests an initial starting point of 6 months and seeks a reduction of 1.5 months to reflect the herbal form of the drug.  The final starting point, submits Mr Chan, would therefore be 4.5 months.

29.Mr Chan urged the court to order concurrent sentencing for the two charges because both relate to offences that were part and parcel of the same criminal conduct.  Mr Chan also reminded the court to apply the totality principle.

Sentence

30.Trafficking in dangerous drug is a serious offence and it is not watered down simply because the drug is a less potent one like cannabis in the present case.

31.I accept that the guidelines that apply here would be the one set down in Tuen Shui Ming; in particular, the 1:1 potency ratio said to apply since Nguyen Thang Loi between cannabis resin and herbal cannabis would not apply in the present case.

32.However, the Tuen Shui Ming guidelines are with respect deficient in the sense that for cannabis resin weighing over 9,000 grammes, the sentencing tariff is simply said to be 48 months and upwards.  Because of this, the sentencing court is not assisted and might need to resort to the age-old method of mathematical extrapolation using as its basis the bands immediately before the “over 9,000 grammes” bracket.  This gives a figure of 0.004 month per gramme.

33.Although the new guidelines under Nguyen Thang Loi strictly should not apply, I believe it’s useful to have reference to them because the new guidelines (i)  are identical to the old guidelines for weights of cannabis resin up to 9,000 grammes and (ii)  provide for actual tariff sentence bands beyond 9,000 grammes and up to 90,000 grammes of cannabis resin.

34.Using the new tariff sentence band for 9,000 grammes to 15,000 grammes, it can be seen that the corresponding figure is a smaller figure of 0.003 month per gramme.  Because it is a lesser figure, I feel confident in being able to use it for the purpose of arriving at an initial starting point for the present case without causing any injustice to Mr Au Yeung.

35.Because the two offences subject of the charges form one single criminal activity, I will as urged by Mr Chan consider them together.  I will add the two weights together to form a single whole.  The figure becomes 12,836.5 grammes of cannabis in herbal form.

36.Using the new guidelines as explained above as a reference, the initial starting point (for cannabis resin)  on a purely arithmetical basis is 59.5 months. Subject to any aggravating factors that may enhance that starting point, I will reduce 12 months as urged by Mr Chan on the ground that the drug is not cannabis resin but is cannabis in herbal form.

37.Throughout my consideration of the sentence, I have borne in mind all that was held in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in particular paras 57-79 therein. I am satisfied that Mr Au Yeung was more than a courier and a storekeeper.  In the Flat for which he held keys, there were three digital scales, one electronic heat sealer, a packet of empty re-sealable plastic bags, a stack of brown bags, a pair of scissors, a marker and a bottle of air freshener.  He admitted that it was he who purchased the packaging paraphernalia and that the digital scales were used by him to weigh the cannabis when he was packaging the same.

38.In HKSAR v Islam Azharul [2020] 1 HKLRD 644 (cited in Herry Jane Yusuph at para 62), Zervos JA said in para 14:

“We observe, however, that the facts in this case reveal that the appellant was heavily involved in the packaging and dissemination of the dangerous drugs and as a consequence this heightened his culpability or aggravated his offending. We consider an enhancement… would be appropriate for this factor, although we point out that this is a matter that could easily have been taken into account when determining the starting point that should be adopted. As a general principle, a starting point is based on the gravity of the criminal conduct and the responsibility for it by the offender.” (Original emphasis removed)

39.It is obvious from the facts that Mr Au Yeung was operating a packaging and dissemination/‌distribution centre for cannabis.  This fact relating to Mr Au Yeung’s role and culpability ought to be reflected in the eventual starting point.  For this reason, the initial (global)  starting point of 59.5 months worked out by arithmetical means is increased to 63 months.  I note that this last figure is still within the relevant band of 48 to 66 months for trafficking in 9,000 to 15,000 grammes of cannabis resin under the Nguyen Thang Loi guidelines.

40.This intermediate starting point is reduced by 12 months to reflect the drug being in herbal form.  The eventual (global)  starting point is therefore 51 months.

41.Mr Au Yeung pleaded guilty in good time, earning for himself the customary 1/3 discount.  I do not discern from the plea in mitigation any other factors of weight to lower the sentence further.  Worth mentioning is that a previous clear-record does not count for much in a case as serious as drug trafficking.

42.Notionally, I will adopt an eventual starting point of 12 months for Charge 1[2] and an eventual starting point of 51 months for Charge 2.  These figures have already taken into account the drug being in herbal form.  I consider the offences subject of the two charges constitute one single criminal activity.  The sentences may properly be made to run concurrently.

43.A consideration of the totality principle will not disturb the final sentence thus arrived at.

(Mr Au Yeung, please stand)

44.The sentence for Charge 1 is 8 months’ imprisonment.

45.The sentence for Charge 2 is 34 months’ imprisonment.

46.I order that the two sentences are to run concurrently with one another.