COURT: Ma Wing-hang, the accused, confirms his plea to two counts of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.
The particulars of the 1st count are that on the 4th day of December 2021, at 8th Floor, William Enterprises Industrial Building, Nos. 23 to 25 Ng Fong Street, San Po Kong, Kowloon in Hong Kong (“the Building”), unlawfully trafficked in a dangerous drug, namely, 50.1 grammes of a mixture containing 41.3 grammes of heroin hydrochloride.
The particulars of the 2nd count are that on 4th day of December 2021, at Room 130, Flat A and B, 8th Floor of the Building, unlawfully trafficked in a dangerous drug, namely, 35,015.8 grammes of a mixture containing 28,501 grammes of heroin hydrochloride.
The Admitted Facts
The facts admitted are that in the evening on 3 December 2021, the police conducted anti-narcotics operation in the Building.
At about 0039 hours on 4 December 2021, the accused was seen walking out from the direction of Flat A and B on 8th floor of the Building and heading to the lift lobby. Police officers approached to intercept the accused and revealed the police identity, followed by an inquiry.
Upon search, one transparent plastic bag containing dangerous drugs was found in the right rear pocket of the accused’s pants. He also had one key and one mobile phone with him at the time.
Under arrest and caution, the accused said he was in debt and needed money, he helped ‘Si Hing’ to unpack and take out the heroin contained in the handbag. He could receive $45,000 in return. The accused also said there were more drugs in the room and could lead the police to the room, namely Room 130 as particularised in Count 2. The key seized from the accused was used to open the door for entry.
Upon search, the following items were found:
(1) 13 carton boxes containing 382 handbags which were cut opened;
(2) 20 carton boxes containing 599 handbags, which contained 359 transparent plastic bags of dangerous drugs upon cutting open the handbags for check;
(3) 6 cut opened handbags containing 6 transparent plastic bags of dangerous drug;
(4) 93 transparent plastic bags of dangerous drug;
(5) 4 black recycle bags containing 200 transparent plastic bags of dangerous drugs;
(6) a pair of scissors, cutter, a roll of plastic tape, CCTV camera with SD card, one ‘GoGoVan’ receipt, and a trolley.
Under further caution, the accused said those were the handbags he just mentioned, he took the heroin out from the bottom layer of the handbags, and the carton boxes were for containing the handbags.
A video-recorded interview was conducted with the accused. The accused said under caution that he bumped into ‘Ah Kit’, whom he came to know previously. Ah Kit learnt that the accused was in need of money, he offered the accused a job of unpacking dangerous drugs with $45,000 as reward. Ah Kit then referred the accused to ‘Si Hing’ from whom the accused received instructions. The key in question was collected the day before the offence. The accused was instructed to collect 2 pallets of goods from a driver in a carpark at Hi-Tech Centre in Sheung Shui, and then to convey the goods to the Building via GoGoVan. Upon arrival at the Building, the accused conveyed the goods, ie 33 boxes of goods to the said Room 130. On instructions of Si Hing, the accused unpacked the carton boxes, cut open the bottom layer of the handbags to retrieve the dangerous drugs. Prior to police interception, the accused was on his way to get food and he carried a bag of heroin with him for subsequent showing to Si Hing as told. He never met Si Hing in person.
CCTV footages of the Building and the room captured the accused’s movement on 3 and 4 December 2021.
The government chemist later examined and certified the type and quantity of the drugs as particularised under Counts 1 and 2. The total estimated street value of the heroin seized was around HK$39.8 million.
The accused admitted at the material times he unlawfully trafficked the dangerous drugs in question.
Mitigation
The accused will turn 45 in February this year. He was born in Hong Kong. He received education up to Form 7 and had worked as a lorry driver for 6 years, earning $20,000 a month. The logistics company he had worked for closed down in June 2021. Mr Ho submitted that the accused was not able to find a new job due to the pandemic and he had to borrow money after his savings were used up. His friend Ah Kit then offered the accused a job of arranging transportation of the 2 subject pallets, which contained drugs to the room for $45,000. The accused foolishly agreed. He was not aware of the quantity of the drugs at the time of agreement. He had not been paid prior to the arrest. Room 130 was not rented by the accused, he only acted on the instructions and hence was a mere courier or storekeeper.
Mr Ho also submitted that the accused was fully cooperative with the police and made full admission in their investigation. In this regard, both Mr Ho and Mr Kong for the prosecution referred this Court to the cases of HKSAR v Leung Chun Him, HKSAR v Ma Ming and HKSAR v PSY. Both parties are ad idem that a discount of 2 to 3 per cent may be given for the accused’s assistance to the police which led to the discovery of the bulk of dangerous drugs under Charge 2.
The accused has two previous conviction records, one concerns with theft convicted in 2014 and one concerns with possession of dangerous drugs convicted in December 2021. For the present purpose, I will not take into account any of these previous records.
Mr Ho urged this Court to impose a concurrent sentence for both charges, for reason that the drug in Count 1 was part of that in Count 2.
Six letters for mitigation were produced. I have read them and accept the accused is genuinely remorseful. I note the presence of his younger sister and a friend in court today to support him.
Sentencing Principles
For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as heroin. No doubt the drug has terrible consequences for the individual, there are also serious consequences for the community.
The view of the community is reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in heroin.
The guidelines for trafficking in heroin originated in R v Lau Tak Ming were confirmed in HKSAR v Abdallah Anwar Abbas where the Court of Appeal set down guidelines for large quantities of dangerous drugs.
The quantities of heroin trafficked were 41.3 grammes and 28,501 grammes, which fall respectively within the band of 5 to 8 years (between 10 and 50 grammes) and the band of at the sentencer’s discretion (more than 15,000 grammes).
Role of the Accused
I make reference to the case of HKSAR v Herry Jane Yusuph. In accordance with the materials before me and the submissions presented by Mr Ho, I accept that the accused was a mere courier or storekeeper, which can be considered one of the lowest ranks.
Disposition
In view of the relevant guidelines, the arithmetic mean for the sentence concerning Count 1 would be 7 years and 4 months’ imprisonment. As regards Count 2, Mr Ho urged this court to adopt a starting point of 30 years’ imprisonment. In view of the quantity involved and the guidelines laid down in Abdallah Anwar Abbas, I adopt a starting point of 32 years’ imprisonment.
I am of the view that there are no aggravating features in this case. The strongest mitigating factor is your timely plea, for which a one-third discount is warranted.
As the present case is a case in which a starting point of over 30 years is involved, after consideration of submission made by Mr Ho as regards the assistance you rendered to the police, I will give a further discount of 3 per cent on top of the one-third discount.
Having imposed the relevant discount, for Count 1, you shall be sentenced to 4 years 8 months’ imprisonment; for Count 2, you shall be sentenced to 20 years and 5 months’ imprisonment.
Given the materials before me and the submissions made on your behalf, in view of the overall circumstances, I order the sentence for Count 1 be operated concurrently with that for Count 2. Therefore, you shall be sentenced to 20 years and 5 months’ imprisonment.