HKSAR v. Wong Kwok Kin and Another

HCCC 362/2023

[2024] HKCFI 1693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 362 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Both defendants pleaded guilty at the earliest opportunity to their respective charges on 9 November 2023 in the Magistrates’ Court and were committed to the Court of First Instance for sentence. The 1^st defendant pleaded guilty to Charges 1 and 2 whilst the 2^nd defendant pleaded guilty to Charge 3.

The 1^st defendant admitted trafficking in a dangerous drug on 29 November 2021 on the 2^nd Floor, No. 32 Lam Hau Village, namely, 47,360.4 grammes of cannabis in herbal form, together with a person known as ‘Ah Shu’, the particulars of Charge 1.

The 1^st defendant also admitted conspiracy to traffic in a dangerous drug between 2 October 2021 and 30 November 2021 with a person known as ‘Teng Jai’

and other persons unknown, conspiring to unlawfully traffic in a dangerous drug, namely, 24,983.93 grammes of cannabis in herbal form, the particulars of Charge 2. Those drugs referred to here were seized in Charge 3.

The 2^nd defendant admitted unlawfully trafficking in a dangerous drug, namely, 24,983.93 grammes of cannabis in herbal form, together with a person known as Lai Wing-hin on 30 November 2021 at a storehouse in Yuen Long, New Territories, at Lot 652RP, DD121, the particulars of Charge 3.

The Facts

On 29 November 2021, customs officers arrested the 1^st defendant acting suspiciously as he walked out of No. 32 Lam Hau Village after they found him carrying six plastic bags containing a total of 2,013.83 grammes of herbal cannabis. He was arrested and admitted that the drugs were cannabis. He was trafficking the cannabis for someone named Ah Shu.

He had keys to the 2^nd Floor premises and he was escorted upstairs. The balance of the drugs of Charge 1, 45,346.57 grammes, were found inside the premises as well as paraphernalia associated with packaging and weighing drugs. The street value of the drugs of Charge 1 was estimated to be $8,619,592.80.

The 1^st defendant’s phone was examined and found to have many messages between the 1^st defendant and two phone numbers, between 2 October and 29 November 2021 within the dates of the conspiracy of Charge 2. One number was saved under the name of Teng Jai. Neither phone numbers belonged to or are linked to the 2^nd defendant.

On 2 October 2021, the 1^st defendant messaged a number 67990432 and discussed finding someone to move some items, dismantle some furniture, and take the risk. The 1^st defendant said he had identified a person who was willing to take the risk. They decided to ask that person, that target, to rent some premises for the job.

It would appear that they had to rent some premises because they were unable to move items “through the waterway” as scheduled because a female police officer had died. Clearly, this was a plan B.

A senior inspector, Lam Yuen-yee, was killed on duty during a police anti-smuggling operation when the police boat she was in command of capsized after it had been rammed by a smuggler’s vessel on 25 September 2021 in the north-west waters of Hong Kong around Tuen Mun. Those phone messages were more than likely referring to her death.

Messages from the same phone showed photographs sent to the 1^st defendant at the end of October 2021 of what appeared to be cannabis packed similarly to the drugs found in the 1^st defendant’s premises on 29 November 2021.

Messages between the 1^st defendant and that person, Teng Jai, on 2 October 2021 showed the 1^st defendant offering him $500,000 reward to complete the job, a risky task. This Teng Jai was interested. Similarly, there were discussions about the death of a female police officer. Therefore this appeared related to this job.

In messages dated 15 November 2021, Teng Jai told the 1^st defendant he had rented a hut according to his instructions and sent some photographs of a tenancy agreement and videos, which the 1^st defendant forwarded to the other telephone number, 67990432, on 20 November 2021. This rental related to DD121, Lot 652RP, that is an address.

There were further telephone messages on 27 to 28 November discussing instructions from the 1^st defendant to Teng Jai who agreed to collect a consignment from a storehouse in Yuen Long on 30 November 2021.

Customs officers put that address, DD121, under observation. On 30 November 2021, they intercepted the 2^nd defendant when he was moving a white box towards the storeroom of that hut at that address. The 2^nd defendant tried to run away but was subdued and arrested.

A search of the premises were conducted and six wooden panels were found inside. They were all opened as was the box the 2^nd defendant was carrying when intercepted. The police found the drugs of Charge 3 in those items, 24,983.93 grammes of herbal cannabis, estimated to be worth $4,547,075.26. Presumably, they came from the storehouse in Yuen Long as arranged by Teng Jai.

The defendant claimed under caution he was paid by his secondary schoolmate name Lai Wing-hin to collect the consignment and place it in that storeroom with the key given to him for a reward of $1,000. Lai also gave him a chop for a Chiu Sheung Furniture Company Limited. This furniture company also turned out to be the final consignee for a pallet of seven pieces of wooden panels shipped from Canada to Hong Kong according to paperwork found at the scene.

The consignment had arrived by sea on 26 November 2021 and someone from the furniture company had contacted the freight company on 29 November 2021, providing an address for delivery.

Mitigation

The 1^st defendant is now 28 years old, single, and was working as a construction site worker earning $15,000 in 2021. He is not a man with a clear record. He has six previous convictions obtained over five court appearances, two are related to dangerous drugs. In March 2018, he was sentenced by the District Court to 56 months’ imprisonment for trafficking in dangerous drugs and on the same day in a separate case, sentenced to 44 months’ imprisonment for conspiracy to traffic in dangerous drugs. 8 months of that last sentence was ordered to be served consecutively to the 56 months. He served a total of 5 years and 4 months’ imprisonment. He was released from that term of imprisonment on 4 February 2021.

Mr Hui for the 1^st defendant has referred me to some authorities involving sentencing those that traffic in herbal cannabis. He submits it would be proper in this case to add the drugs of Charges 1 and 2 together to take a global approach.

He submits that for Charge 1, the defendant’s role was that of a storekeeper, repackaging herbal cannabis. Similarly for Charge 2, he submits his role was akin to that of a storekeeper, arranging for it to be stored and collected. He urges this court not to consider the defendant had any knowledge that the drugs had come from Canada.

The 2^nd defendant is now aged 25 years old, single, living with his family and was when arrested a freelance driver earning $13,000 a month. He was a man with a clear record. He was tempted by a former schoolmate to receive the goods when delivered and to look after it. He was offered HK$1,000. He only knew the goods were cannabis shortly before the delivery but I have been told he felt he was in too deep and too involved to walk away.

There is no evidence to show he knew the 1^st defendant nor was he involved in the importation and transportation of the drugs other than receiving it when it was delivered to be locked up in the storeroom. There is no knowledge he knew the goods had been shipped from Canada.

Both defence counsel have said all they can say on behalf of the defendants. Their best mitigation is their timely pleas. I have read mitigation letters from both the 1^st and 2^nd defendant.

Sentencing Guidelines

I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guidelines, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendants.

I agree with Mr Hui for the 1^st defendant that I can look at the charges globally. Despite the 2^nd charge being a conspiracy to traffic in dangerous drugs, in this case, the amount is quantified and tangible. There is a total of 72,344.33 grammes of herbal cannabis in Charges 1 and 2.

The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. These offences were committed before the latest Court of Appeal’s judgment relating to sentencing guidelines for cannabis in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329. These latest, more stringent guidelines do not apply to these defendants. The tariff from Attorney General v Tuen Shui Ming [1995]2 HKCLR 129 remains relevant.

In that authority, the tariff for trafficking over 9,000 grammes of cannabis resin is 4 years and upwards. An adjustment should be made for trafficking in herbal cannabis, then deemed less strong compared to resin unless it was in significant quantities or very large amounts, this is the case here.

I have been referred to other cases involving large quantities by counsel which I do not intend to repeat here. In HKSAR v Wong Master Sutthichai, HCCC 131/2022, that defendant pleaded guilty to trafficking in 58.605 kilogrammes of cannabis in herbal form and the sentence judge was of the view that a starting point of 7 years for such a quantity was proper. She did go on to enhance it by 2 years to take into account the aggravating factor of importation involving an international element.

Similarly in HKSAR v Nguyen Trong Thigh, HCCC 92/1998, a plea of guilty to two counts of trafficking a total of 60.6 kilogrammes of herbal cannabis. The Court of Appeal was of the view that a starting point of 7 years for such a quantity was proper. Obviously, each case is largely determined on its own facts, especially here where the guidelines are not more specific for quantities over 9,000 grammes.

Counsel for the 1^st defendant, Mr Hui, has submitted a starting point of about 7 years should be considered appropriate for the drugs of Charges 1 and 2. I find a global starting point of 7 years and 6 months’ imprisonment appropriate on the quantity alone.

Counsel for the 2^nd defendant, Ms Ling, has submitted a starting point of about 5 years’ imprisonment is appropriate, taking into account the quantity of cannabis and his role. I find a starting point of 5 years and 6 months’ imprisonment appropriate on the quantity alone.

This brings me to consider the second step of the six steps which is to assess each defendant’s role and culpability based upon the evidence. There is a difference with these two defendants here. I accept the submission that the 2^nd defendant was acting as a storekeeper for a financial reward. He may very well have been more involved than he admits but there is no evidence to suggest otherwise.

The 1^st defendant however, I would respectfully disagree that he was also only a storekeeper. Those messages between two other people and the 1^st defendant clearly shows he was more than a storekeeper. He was an organiser. He was in a position to offer Teng Jai $500,000 to sort out the collection, delivery, and storage in rental premises of the drugs of Charge 2 and 3. He was going to pay another to take the risk of arrest. His active participation in that conspiracy does not tally with him being a mere storekeeper for the drugs of Charge 1, over 47,000 grammes of the same drugs worth over $8.6 million. This makes his role and culpability, in my view, much more serious than a storekeeper or courier.

Considering the third step, I must decide where within the guidelines both defendants should lie. I accept the submission that there is not enough proof to show the 1^st defendant knew the drugs were imported from Canada. However, his role and culpability as a manager or organiser deserves a starting point of 8 years and 6 months. I increase the starting point I found appropriate for the quantity alone by 1 year to reflect the defendant’s involvement and culpability.

The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. I find no aggravating factors exist for the 2^nd defendant. However, the 1^st defendant was convicted of two serious drug offences in March 2018. He was arrested for the first case of conspiracy to traffic in dangerous drugs in 2016. He was given bail and arrested again a year later in July 2017 for trafficking in cocaine. He was only released 8 months before the commission of these offences. I take that as an aggravating factor and add a further 6 months to the starting point and come to one of 9 years’ imprisonment.

There are no mitigating factors other than their pleas of guilty for which they will receive a one-third from the steps I have determined appropriate.

For the 1^st defendant, after that one-third discount is applied, the starting point of 9 years is reduced to 6 years’ imprisonment. He will be sentenced to 6 years’ imprisonment for both Charges 1 and 2. Both Charges 1 and 2 will be served concurrently.

For the 2^nd defendant, after that one-third discount is applied, the starting point of 5 years and 6 months is reduced to 3 years and 8 months’ imprisonment.

The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just, and balanced in all the circumstances of not only these offences but also the defendants. The sentences I have imposed are not so harsh they are unfair, imbalanced, or unjust.

Accordingly, the 1^st defendant for Charge 1 is sentenced to 6 years’ imprisonment. For Charge 2, he is sentenced to 6 years’ imprisonment. I have ordered both sentences to be served concurrently, therefore he will serve a total of 6 years’ imprisonment.

The 2^nd defendant for Charge 3 is sentenced to 3 years and 8 months’ imprisonment.