COURT: The two defendants, Wong Yeuk-nam, D1, and Hui Sze-hon, D2, were jointly charged with one count of conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and 4(3) and 39 of the Dangerous Drugs Ordinance, Chapter 134, and sections 159A and 159C of the Crimes Ordinance, Chapter 200. The defendants pleaded guilty before a magistrate and were committed to the Court of First Instance of the High Court for sentence.
The Summary of Facts
The offence in question was discovered by the police on 6 May 2020. Prior to this date, D2 who was then a serving police officer, SSGT34734, took part in an operation by officers of Kowloon West region on 28 April 2020.
During that operation, I will call it KW operation, approximately 300 kilogrammes of ‘Ice’ were found inside the
premises in Shanghai Street. However, before examination of the dangerous drug could be conducted, D2 took away some of the drugs which became the subject of the present conspiracy case.
On 6 May 2020, police raided a hotel room, Room 1517 of the Royal Garden Hotel in Tsim Sha Tsui. D1 was alone inside the room. The safe of the room was locked and D1 did not respond when the police asked her to unlock it. A hotel staff was summoned to unlock the safe. Inside the safe, police found one plastic bag containing 154 grammes of a crystalline solid containing 152 grammes of methamphetamine hydrochloride, a number of resealable bags, one electronic scale, and drug inhaling equipment.
D1 was arrested. Under caution, D1 said she knew nothing about the things inside the safe and they did not belong to her.
While police was still conducting investigation inside the hotel room, D2 entered the room with the key card. D2 was then carrying a bag containing the following items: two packets of “tea products” containing 2 kilogrammes of a crystalline solid containing 1,957 grammes of methamphetamine hydrochloride and the packaging of the tea products was identical to those dangerous drugs seized during the KW operation; cash of HK$104,000; five mobile phones; and the ID card of D1.
And under arrest and caution, D2 claimed the two bags of tea products were given to him by D1.
Investigation reveal that D2 was the handler of an ongoing police operation and had the key to a certain premises maintained for the operation. Another officer also had the key to that premises. In the presence of D2 and that other officer, police from the Narcotics Bureau found a foam box containing 23 packets of tea products containing a total of 22.992 kilogrammes solid containing 22,534 grammes of methamphetamine hydrochloride. The packaging of the tea products was identical to those seized during the KW operation.
Under arrest and caution, D2 claimed the 23 bags of tea products were given to him by D1. In two video-recorded interviews conducted with D1, D1 claimed to have no knowledge of the items inside the safe. They were placed there by her friend nicknamed ‘Lo Fu Chai’. She had no idea why D2 showed up in the hotel room. She had no knowledge of the tea products found in the bag carried by D2. The cash of 160,700 were mostly given to her by her boyfriend.
D2 attended three video-recorded interviews. D2 claimed he knew D1 and D1 provided drug-related information to him. The two tea products were given to him by D1 as D1 does not like tea. The 23 bags of tea products were also given to him by D1 but on previous occasions. He rented the premises for an ongoing police operation and he used the premises to brief another officer.
And he said on 6 May 2020, he had gone to D1’s hotel room four times. The first time was to leave some bread for her outside her room, the second was to visit D1 who was emotionally unstable, the third time was when D1 gave him the two bags of tea products, the fourth and the last time was when he returned to the hotel room when he discovered that he had D1’s ID card and the key card with him and he was arrested upon entry. He claimed the $104,400 found on him was for the ongoing operation.
He remained silent when he was asked about CCTV footages of the Royal Garden Hotel and the vicinity of the premises. The other officer who had access to the premises told the police he knew nothing about the dangerous drug found inside the premises. The last time he visited the premises was on 24 April 2020, a few days before the KW operation.
In total, the dangerous drug seized in this case amounts to 25,146 grammes of a crystalline solid containing 24,643 grammes of methamphetamine hydrochloride and the average retail price at the material time was HK$16,093,440.
Both defendants admitted that between 27 April 2020 and 6 May 2020, both dates inclusive, they have conspired with each other to unlawfully traffic methamphetamine hydrochloride in Hong Kong.
Before mitigation commenced, Mr Leung for the prosecution brought my attention to two cases involving serving police officers committing offences. The first one is HKSAR v Lau Kwok and Others, the reference is CACC 529/2001, and the other one is HKSAR v Leung Chun Man, CACC 156/2003. Sufficed to say that the Court of Appeal said in both cases that it was a serious aggravating factor for a serving police officer to commit serious crime.
Background and Mitigation, D1
D1 was born in June 1991 and is now 32 years of age. She is not a woman with a clear record. She appeared in court four times with a total of six convictions. In her first court appearance in 2009, she was sentenced to prison for 28 months in relation to two trafficking in dangerous drugs offences. In 2018, she was sentenced to DATC for possession of dangerous drugs. In 2020, she was sentenced to 4 months’ imprisonment for failing to surrender to custody without reasonable cause as appointed. And in 2022, she was sentenced to 8 months’ imprisonment for two counts of incitement to pervert the course of justice.
According to the antecedent statement, she was educated up to Form 6 level, unemployed at the time of the arrest. She claimed to be single and had no fixed abode. D1’s counsel Mr James Wong, informed this Court that D1 has a 7-year-old daughter. Counsel submitted that D1 was born into a broken family. She was abandoned by her biological parents when she was only 1 month old and she was taken care of by her adoptive parents.
D1’s mother who was a drug addict reappeared in D1’s life when D1 was 14 years old and introduced her to drugs. Due to D1’s complicated family background, she craved for love and for a stable family. D1 was romantically involved with D2 at the material time and she was led to believe she and D2 would start a family together. She thus unwisely agreed to help D2 in committing the present offence.
As for D1’s previous convictions, Mr Wong asked this Court to take into consideration that D1 had finished serving the 12-months sentence imposed in 2020 and April 2022 when considering the sentence in this case. Counsel submitted that after her incarceration, D1 found love and security in Jesus Christ and her plan to study theology has materialised in that she is now accepted by the Hong Kong Metropolitan University to pursue this study.
Counsel submitted D1 missed her daughter and regarded her absence from her daughter’s growing up as the most severe punishment. Counsel referred this Court to the case of Herry Jane Yusuph, Tam Yi Chun and Abdallah and submitted that the starting point for over 15 kilogrammes of ‘Ice’ is at the discretion of the sentencer. Counsel also referred to the recent case of HKSAR v Lee Ming Ho regarding sentencing principles for drug trafficking cases.
Counsel also referred to the mitigation letters written by D1, her friend, her younger sister, her former school principal, a social worker, a pastor and so on, all asking for leniency on behalf of D1. I do not think there is a need to reiterate the contents of these letters. Almost all refer to the family background of D1 and her craving for love and security, leading her to committing the present offence.
D1 herself expressed her deep remorse and all those who had contact with her also expressed that they felt her remorse. Whilst appreciating that a sad and broken family background is not an excuse for the commission of such a serious offence, they nevertheless asked this Court to be as lenient as possible in sentencing D1.
D2
D2 is now aged 45. He is married and does not have any children. He has a clear record. At the time of the offence he was a serving police officer. D2’s counsel, Mr Caesar Lo in mitigation submitted that D2’s studied part time and obtained a diploma in management for disciplined services from the Chinese University of Hong Kong after he joined the police force in 1996 as police constable and he was promoted to the rank of a station sergeant in 2018.
Referring to various compliments and letters of appreciation given to D2 over the years, Mr Lo submitted that D2’s record was exemplary and his contribution in fighting crime was recognised by the police force. Mr Lo asked this Court to consider D2’s previous positive good character when sentencing him. Mr Lo submitted that D2 is full of remorse and accepts that the offence he committed was a serious breach of trust as it brought disrepute to the reputation of the police force.
D2 did not seek to undermine the gravity of this crime. In his letter to this Court, D2 said he had taken up various courses in religious study and had taken part in voluntary work such as making gift cards for the needed. D2 promised to continue his pursuit in Christian faith and to face the future with a positive attitude.
Mr Lo also referred to a letter written by a chaplain Mr Lam on D2’s behalf. Mr Lam confirmed D2’s efforts in religious studies and doing voluntary works. D2 had gone through positive changes and Mr Lam was convinced that D2 would become a useful and responsible citizen in the rest of his life.
Regarding the sentence, Mr Lo referred to the six-step approach in the case of Herry Jane Yusuph and submitted that while the present case is one of conspiracy, the overall quantity of ‘Ice’, that is over 24 kilogrammes, remain the decisive factor in sentencing. Mr Lo referred to the recent Court of Appeal case of HKSAR v Lee Ming Ho. In that case, the applicant was convicted after trial of trafficking over 34 kilogrammes of ‘Ice’ and another non-drug related offence. The judge adopted 33 years and enhanced it by 2 years for the international element.
Another 2 years was added to reflect the higher position of the applicant, so a total of 37 years was imposed. On appeal, the Court of Appeal reviewed the sentencing approach in the case of Abdallah and how that, among other things, the involvement of the international element and the trafficker’s position in the syndicate should be regarded as matters going to the role and culpability of the offender when considering the starting point, rather than as a separate and additional aggravating factor. The appeal against sentence was allowed and replaced by one of 33 years.
Mr Lo submitted that D2’s position as a serving police officer is a serious aggravating feature in the case. However, that should be considered in the assessment of D2’s role and culpability as any separate consideration of it may run into the risk of double counting. This is particularly so had D2 not been a police officer, he would not have been able to play the role in the offence in taking the drugs seized in another operation.
Mr Lo accepted that the main mitigation is D2’s timely plea. D2 wishes to apologise to his family, friends, colleagues, the police force and all those who have been hurt and let down by his wrongdoing.
Consideration for Sentence
Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drug is involved. A person convicted on the indictment of a conspiracy to traffic in a dangerous drug is liable to a fine of $5 million and to imprisonment for life. Although this is case of conspiracy to traffic in a dangerous drug, as the actual amount of ‘Ice’ is known here I will use the appropriate guidelines for the trafficking of ‘Ice’ in my consideration of the appropriate sentence.
According to the case of Tam Yi Chun, trafficking over 600 grammes of ‘Ice’, the starting point is over 20 years. In the case of Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of ‘Ice’. For the trafficking of 4 kilogrammes to 15 kilogrammes, the starting point is 26 to 30 years. For the trafficking of over 15 kilogrammes, the appropriate starting point is at the sentencer’s discretion.
Now, the ‘Ice’ involved here amounts to 24.64 kilogrammes, that is 24,643 grammes. On the quantity alone, the starting point would be at least 30 years, if not more. I will adopt the six-step method propounded in Herry Jane Yusuph to see what the sentence for trafficking in a dangerous drug would have been and adjust the same to take into account this case involved a conspiracy to traffic in dangerous drug, bearing in mind an offence of conspiracy to traffic in a dangerous drug is more serious than the actual trafficking of dangerous drugs.
The First Step
The first step is to identify the relevant guideline band applicable to the quantity concerned. I have already mentioned the dangerous drug involved is over 24 kilogrammes of ‘Ice’ warranting not less than 30 years as a starting point.
The Second Step
The second step was an assessment of the defendant’s role and culpability based on the evidence. D1 was the actual trafficker while D2 was the one who obtained the ‘Ice’ and provided the same to D1 for trafficking.
D2, in breach of the trust placed on him by the police force, secretly took away ‘Ice’ seized during the KW operation and trafficked the same with D1. They conspired together to traffic dangerous drugs. As said by the Court of Appeal in the case of Lau Kwok, paragraph 50:
“Integrity of law enforcement officers is the linchpin of the proper administration of justice and the corner stone of a just and fair society. Law enforcement officers who abuse their positions and conspire to defeat the end of justice must be punished severely or else the confidence of the public cannot be maintained.”
The Third Step
Having considered their respective roles, I am of the view that the notional starting point for D1 is 32 years and for D2, 36 years.
The Fourth Step, Aggravating Factors
In the case of D1 as she had two previous convictions of trafficking in dangerous drugs and one of possession of dangerous drug, leaving aside the other offences, it can be said that her previous drug-related convictions amount to an aggravating feature. However, on consideration that a starting point of 32 years is already a very hefty sentence, I will not enhance the starting point for D1.
As for D2, the fact that he was a serving police officer would normally be an aggravating factor. However, as I have already taken such feature into account when I assessed his role, I will not consider the same again here to avoid double counting.
The Fifth Step, the Mitigating Factors
Both D1 and D2 pleaded guilty at the earliest available opportunity and both are entitled to a full one-third discount. In the case of D2, I will give him a slight discount of 2 months in recognition of all the commendations he had received in the past. A one-third from 36 years yields 24 years. With a further discount of 2 months, the sentence is one of 23 years and 10 months.
In the case of D1 however, apart from the discount of plea there exist special circumstances on the papers which justify the lenient view to be taken of the fact and I will give the defendant a total discount of around 48 per cent, bringing the sentence to 16 years and 6 months.
The Last Step
I am satisfied that the sentence imposed on D1 and D2 respectively is fair, just and balanced in all the circumstances of the offence and on the two defendants.
Actual Sentence
For the offence of conspiracy to traffic in a dangerous drug, D1 is sentenced to 16 years and 6 months’ imprisonment. D2 is sentenced to 23 years and 10 months’ imprisonment.