The 2nd defendant pleaded guilty to the 2nd charge of using an identity card relating to another person on the same day at the same location. However, I intend to deal with him separately for reasons which will become obvious in his reasons for sentence.
All three defendants pleaded guilty on 16 May 2022, in the Eastern Magistracy and were committed to the Court of First Instance for sentence.
The prosecution’s case is that on 28 November 2019, the police raided a sophisticated trafficking dangerous drugs operation. Two warehouses were involved, and at least six men. This does not include those who were behind the scenes controlling the operation. Pallets of cowhides were imported into Hong Kong, and amongst the cowhides were cavities stuffed with packets of cocaine.
On 28 November 2019, a GoGoVan driver was hired to pick up and deliver two pallets to a warehouse, to Chun Wah Warehouse in Sha Tau Kok. Unbeknownst to him, those cowhides concealed packets of cocaine. He delivered the pallets at 2 pm that day.
Rather extraordinarily, the police seized footage from “Go-Pro” cameras set up in that warehouse, recording and monitoring what happened that day. There was a record of, at times, from between two men to four men dealing with those cowhides. Cowhides were cut, drugs retrieved and weighed.
A Go-Pro camera recorded the weight of packages before they were put in suitcases. The recording stopped at about 5.30 in the afternoon and it would appear from those recordings that by then the bulk of drugs were packed in suitcases and transported to a second warehouse. The second warehouse was in a village not far away, minutes away by car.
In that warehouse raided later that night, the police found two suitcases full of dangerous drugs. Suitcases and the packaging of the dangerous drugs were exactly the same as those seen in the first warehouse. Undoubtedly, the drugs were moved from the first warehouse to the second warehouse.
Undoubtedly, some of those drugs had been unpacked, weighed and repacked into large, transparent, resealable plastic bags. The police found all the paraphernalia associated with spooning, weighing and repackaging drugs. Three defendants in this case have only been charged in relation to drugs found in the first warehouse.
There is a gap of about two hours in the Go-Pro footage. When recording started again at about 7.30 pm, three men, including the 1st and the 3rd defendant, were methodically going through each hide again, clearly to check if there were any dangerous drugs remaining.
When the police raided the warehouse, they found three small packets in a suitcase. Either those three packets were found in that two-hour gap in hides and a decision was made to recheck every hide in case drugs had been missed, or a decision was made to recheck the hides, and those three packets were found and the police raided whilst that final check was being made.
How or why or when the drugs were found in the suitcase is neither here nor there. All three defendants admit they were dealing with the drugs found in the first warehouse.
The 1st and 3rd defendants were arrested climbing out of the warehouse when the police raided and admitted, under caution, that they had been dealing with the dangerous drugs.
The 4th defendant, Lam, was arrested 800 metres away, hiding in a vehicle. In that vehicle was a walkie-talkie tuned to the same channel as a walkie-talkie found inside that warehouse. He can also be identified in Go-Pro footage, holding packets of dangerous drugs inside that warehouse earlier that day.
Mitigation
I have heard mitigation for all three defendants and received written submissions. This offence is so serious that mitigation I’ve heard, including letters received, carries little weight.
The 1st defendant is now 37 years old and had a clear record before this offence. Ms Lau has said all she can say on his behalf. She has told me of his family background, of his full-time employment before his arrest, but also his financial burden due to his father’s health condition and medical bills.
His income was affected by the widespread protests of 2019 and his workdays reduced. He needed the income and was offered an opportunity to make quick money by cutting open cowhides. He accepted the job. I have been told that when he accepted that job, he was not aware that the cow hides were stuffed with cocaine. But when he found out at the start of the job, despite his reluctance to continue, he did remain and was ultimately arrested.
I have seen the Go-Pro footage of over five hours and I can see exactly what the 1st defendant was doing during his time in that warehouse.
The 3rd defendant is now 41 years old, single and was working as a lift technician when arrested. He has one previous conviction, but it was when he was 18 years old.
I have been told in early 2019, he fell for a woman who had very expensive taste. She appeared to have bled him dry financially, but his eyes were shut to her evil intentions. She wanted him to buy her expensive presents and asked him to give her $100,000 because her family was in urgent need of money. He did not have that money, but he borrowed it nonetheless.
He told a friend that he was in financial difficulty because of her extravagant and expensive taste. This friend offered him $10,000 to do a one-off job to cut dangerous drugs out of cowhides. When he was there, he did not know the other people inside the warehouse. He is now very remorseful. I’ve seen letters submitted by Ms Lee on his behalf. She has also said all she can say in mitigation.
I too have seen this defendant in the Go-Pro footage in the warehouse, what he does and who he interacts with during the course of the trial of co-accused.
The 4th defendant is now 41 years old and married. He is not a man with a clear record. He has six previous convictions, of which two are trafficking in dangerous drugs. He was sentenced to 3 years and 4 months’ imprisonment in the District Court on 13 June 2008.
At the time of this offence, he was working as a freelance truck driver, but his salary had become very unstable due to the unrest and protests. He is a family man, has two children to support as well as his mother.
Because of financial difficulties in supporting his whole family, he was tempted by the $10,000 offer to do a one-off job in the warehouse. Mr Ho has said all he can say on behalf of the defendant and submitted letters from his family. I have read them, but as I have said earlier, they carry little weight in light of the seriousness of this offence.
These men are exceptionally lucky that the prosecution did not attempt to prosecute them for the drugs that had already been cut out and delivered to 6A before the police arrived at Chun Wah Warehouse.
Sentence
I have considered the approach to the sentence of trafficking in dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which a 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 defendant.
The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drug seized. The tariff for trafficking in cocaine follows the tariff for trafficking in heroin. HKSAR v Pedro Nel Rojas [1994] 1 HKC 342.
For this present case, the tariffs follow that laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370, where between 1,200 to 4,000 grammes is involved. This will attract a sentence of between 23 to 26 years’ imprisonment after trial. In the present case, trafficking in 1,215 grammes of cocaine would mathematically attract a starting point of 23 years’ imprisonment.
As far as the second step is concerned, assessing each defendant’s role and culpability. I accept submissions made that there is no evidence of them playing a more involved role other than these three men acting as workers or foot soldiers. There is no evidence of any of them having a more organisational or managerial role.
Taking into account the third step, I will determine their sentences by the relevant tariff based on the quantity of dangerous drugs found. I intend to take that mathematical approach and take a starting point of 23 years’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating or mitigating factors or exceptional mitigating factors. I do not find any aggravating or mitigating factors which apply to these three defendants.
The 1st, 3rd and 4th defendants pleaded at the earliest opportunity and are entitled to a one-third discount. After that discount is applied, the sentence for each defendant, the 1st, 3rd and 4th defendants, for Charge 1 will be 15 years and 4 months’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also each defendant. In the circumstances of this trial, it is not a severe sentence. It is not unfair, imbalanced or unjust.
Accordingly, and I repeat, for Charge 1, the 1st defendant is sentenced to 15 years and 4 months’ imprisonment. For Charge 1, the 3rd defendant is also sentenced to 15 years and 4 months’ imprisonment. For Charge 1, the 4th defendant is also sentenced to 15 years and 4 months’ imprisonment.