HKSAR v. Chan Wai Hang and Another

DCCC 56/2024

[2025] HKDC 696

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 56 OF 2024

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REASONS FOR SENTENCE

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1.D1 and D2 pleaded guilty before me to a joint charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that they, on 18 April 2023, at 1^st Floor, No 242B Fan Tin Tsuen, San Tin, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 27,297.8 grammes of cannabis in herbal form.

Facts admitted by D1 and D2

2.On 18 April 2023, at 8:35 am, police officers arrived at the house located at No 242B Fan Tin Tsuen, Yuen Long, aforesaid.  They forcibly opened the iron front gate and went up the staircase to the apartment on the 1^st floor (“the Apartment”).  They knocked on the wooden door but no one answered.  When the police proceeded to try to ram open the door, D2 shouted from inside asking them to stop.  She opened the door.  D1 and D2 were standing beside the door.  Police executed a search warrant.  Dangerous drug and paraphernalia were found.

3.At 8:40 am, police arrested D1 for trafficking in a dangerous drug. Under caution at the scene, D1 said, “I have no money, so I helped others to repackage the cannabis to earn quick money.  Please give me a chance.”  On D1 were found three mobile phones and two keys.

4.At the same time, police arrested D2 for the same offence.  Under caution at the scene, D2 said, “Those cannabis were brought here by Ah Hang, I helped him to repackage them together to earn quick money, please give me a chance.”  On D2 were found one mobile phone and three keys.

5.The following dangerous drugs were seized by the police from the places indicated:

On the white wooden table in the living room:

(a)  One electronic scale with a bowl containing 4.80 grammes of cannabis, in herbal form (E1);

(b)  One plastic container containing 420 grammes of cannabis, in herbal form (E2);

(c)  One transparent bag containing 55 transparent bags containing a total of 244 grammes of cannabis, in herbal form (E3);

(d)  One transparent bag containing large number of transparent bags containing 122 grammes of cannabis, in herbal form (E4);

On the sofa:

(e)  Ten transparent bags containing large number of transparent bags containing 2,040 grammes of cannabis, in herbal form (E5);

In the living room:

(f)  One nylon bag containing the following (altogether E6):

(i)  6 packets (consisting of plastic wrappings)  containing a total of 2,970 grammes of cannabis, in herbal form;

(ii)  1 plastic packet and 5 packets (consisting of plastic wrappings)  which contained a total of 2,970 grammes of cannabis, in herbal form;

(iii)  6 packets (consisting of plastic wrappings)  containing a total of 2,970 grammes of cannabis, in herbal form;

(g)  One nylon bag containing the following (altogether E7):

(i)  7 packets (consisting of plastic wrappings)  containing a total of 3,470 grammes of cannabis, in herbal form;

(ii)  7 packets (consisting of plastic wrappings)  containing a total of 3,470 grammes of cannabis, in herbal form;

(iii)  4 packets (consisting of plastic wrappings)  containing a total of 886 grammes of cannabis, in herbal form;

(h)  One nylon bag containing the following (altogether E8):

(i)  7 packets (consisting of plastic wrappings)  containing a total of 3,470 grammes of cannabis, in herbal form;

(ii)  7 packets (consisting of plastic wrappings)  containing a total of 3,470 grammes of cannabis, in herbal form;

(iii)  4 packets (consisting of plastic wrappings)  containing a total of 791 grammes of cannabis, in herbal form.

(i)  One empty nylon bag (E9).

6.The total weight of herbal cannabis seized was 27,297.8 grammes.  The street value as of April 2023 was HK$5,732,538.

7.The following drug paraphernalia were seized from the white wooden table in the living room:

(a)  A sealing machine;

(b)  A pair of scissors;

(c)  An electronic scale (the same one as mentioned previously);

(d)  A marker;

(e)  A bundle of transparent bags; and

(f)  A pair of gloves.

8.On 18 April 2023, between 12:05 pm and 12:40 pm, D1 was video-interviewed under caution during which he asserted:

(a)  He was asked to repackage some dangerous drugs for quick money; he was introduced to an “Ah Fei” through an “Ah Shing”; Ah Fei (Tel: 5797 7872)  contacted D1 on 12 to 13 April via a telephone call asking him to repackage the cannabis for HK$2,000 per kilogramme;

(b)  On 14 April, Ah Fei contacted D1 asking him to collect the cannabis from another person; when D1 arrived at the parking lot of Fan Tin Tsuen, at around 5 pm, Ah Fei provided D1 with another telephone number and asked him to contact that person for the collection; after contacting that person, D1 met with another male and collected the 4 nylon bags (ie E6 to E9)  and D1 carried them home with a trolley;

(c)  Later, Ah Fei asked him to repackage the cannabis into smaller packets, 4.5 grammes each; he had to prepare around 800 smaller packets; an electronic scale was included in the nylon bags alongside with the cannabis; the cannabis contained in those 4 nylon bags were contained in sealed plastic bags and were about 500 grammes each; there were a total of about 30 to 40 of these sealed plastic bags containing cannabis in those 4 nylon bags;

(d)  D1 only started repackaging them in the small hours of 18 April 2023;

(e)  Some photos taken in the Apartment shown to D1 show cannabis was in the process of being repackaged; E5 were those smaller packets that he had repackaged; and

(f)  The keys seized from D1 were the keys to the Apartment which was his residence.

9.On 18 April 2023, between 12:55 pm and 1:23 pm, D2 was video-interviewed under caution during which she asserted:

(a)  “Ah Hang” referred to in her cautioned statement at the scene was D1; the Apartment was rented by D2 since June 2022; only D1 and D2 had the keys to the Apartment;

(b)  When D2 returned from Mainland China on 14 April 2023, she saw there were cannabis in the Apartment; D1 confirmed to her that they were cannabis and he was to earn quick money by repackaging them; D2 decided to help D1 in order to earn quick money;

(c)  D2 would repackage the cannabis into smaller packets, each containing 4.5 grammes; she would then seal the opening with a heat sealing machine; and

(d)  Some photos taken at the scene show cannabis and repackage tools on the white wooden table; the 4 nylon bags in the living room were used to carry cannabis.

10.Call records show that the number 5797 7872 gave D2 nine calls on 18 April 2023 after she was arrested.

11.The tenancy agreement of the Apartment seized at the scene was entered into in the name of D2.

Criminal records

12.D1 has three previous convictions one similar and another for possession of dangerous drug, both dating back to more than 15 years ago.

13.D2 has a clear record.

Antecedents

14.D1 is aged 35 (34 at the time of the offence), educated to secondary school level, unemployed at the time of arrest.  D1 is divorced.  At the time of arrest, he was living with his girlfriend D2 in the subject premises in San Tin, Yuen Long.

15.D2 is aged 44 (42 at the time of the offence), educated to secondary school level, unemployed at the time of arrest.  She is divorced.  At the time of arrest, she was living with her boyfriend D1 in the subject premises in San Tin, Yuen Long.

Mitigation

D1

16.Mr Philip Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

17.D1 is divorced and provides for his son (11)  who is being taken of by D1’s parents (in their 60s).  D1 is by profession an experienced chef.

18.D1 committed the offence because of financial pressure and out of an urge to make quick money to repay his debts.

19.D1 immediately admitted his involvement in the offence on arrest.  He pleaded guilty to the charge.

20.The tariff for trafficking in cannabis resin between 15,000 and 45,000 grammes ranges from 66 and 96 months’ imprisonment: HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, 1330 under Holding (1).

21.Arithmetically, the weight of the drug here should yield a starting point of 78 months’ imprisonment.

22.Within the tariff range, the starting point may be adjusted downward for cannabis in herbal form, and if one applies Secretary for Justice v Lee Siu Kei [2006] 1 HKC 499 at paras 12 to 13, the starting point after the adjustment should be 67 months.

23.The starting point can be further adjusted downward within the acceptable range for the remorse (including the plea of guilty)  and his determination of reforming himself that D1 has shown in his own mitigation letter.

24.Mr Wong submitted on behalf of D1 one mitigation letter written in Chinese by D1 himself.  The contents are generally that D1 committed the offence because he was under financial pressure which arose as a result of his skills as a chef being rendered less relevant than previously by people going North for travel and spending since 2022; he simply could not repay his debts accumulated over the years when he had no work during the pandemic; that he is regretful and shameful for his stupidity in committing the offence; that he promises not to re-offend.  D1 asks for a lenient sentence so he may return home early and take care of his family.

D2

25.Mr PC Lee of counsel mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

26.D2 is of clear record.  D2 and D1 have been cohabitees for more than 18 months.  D2 was the registered tenant and she paid a monthly rent of $6,000.

27.D2 is a divorcee since 2019 and, with her ex-husband, has a daughter (15)  and a son (13).  The children’s custody have been granted to the ex-husband and they are both in full time education.

28.D2’s last employment was as a beautician in 2022 earning around $20,000 a month but she ceased working in February 2023.

29.D2 had no knowledge of the arrangements D1 had made with the drug suppliers.  Her role (as stated in her VRI)  was she confirmed with D1 that the bags contained cannabis and the purpose of their being there was for repackaging in order to earn quick money.  It was out of a sense of misguided loyalty that she helped D1 to repackage them and she had only done so for a few short hours.

30.D2 pleaded guilty.

31.The tariff for this type of offence is between 66 and 96 months’ imprisonment for quantities of herbal cannabis and cannabis resin.  The tariffs were revised.  See HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, 1330, with no distinction being made between the two different forms of cannabis.

32.For the amount of 27,297.8 grammes, using the arithmetic approach, a starting point of 78 months is the outcome.  By pleading guilty, D2 is entitled to the full 1/3 discount.

33.D2 upon arrest fully admitted her role and co-operated with the police throughout.  Her clear record, her minor role in the trafficking enterprise, the remorse shown ought to favour a further discount in her sentence.

34.Mr Lee submitted on behalf of D2 three mitigation letters written in Chinese (with English translation)  by respectively D2, her friend, and ex-husband.  The contents are generally that D2 felt deeply regretful and promises not to re-offend.  The letter writers all asked for a lenient sentence so D2 may return to society and re-unite with her mother and children earlier.

35.Upon enquiry by the court on a separate matter, Mr Lee submitted the reward for the repackaging exercise was $2,000 per kilogramme.

Sentence

36.I have seen a photo album supplied by the prosecution (since returned)  consisting of photographs of the scene.  They show a sizeable repackaging operation inside what looks like a set of residential premises.

37.The sentencing guidelines for trafficking in herbal cannabis and cannabis resin have been completely equalized since HKSAR v Nguyen Thang Loi (supra).  This is because, according to the Court of Appeal, at 1358, para 95:

“… The current scientific evidence has shown a dramatic increase in the THC concentration in herbal cannabis and cannabis resin, both having an average of about 19%. It requires they be treated similarly for sentencing purposes…”

38.The guidelines have been revised and are contained at 1359 of the reported judgment, para 97.  The sentencing band for over 15,000 grammes to 45,000 grammes of the drug is a term of 66 to 96 months’ imprisonment. Arithmetically alone, for trafficking in the 27,297.8 grammes of herbal cannabis in this case, the sentence before consideration of other circumstances would be 78 months’ imprisonment.

39.With respect to Mr Wong for D1, there can be no downward adjustment for the fact that the drug we are dealing with is herbal cannabis rather than cannabis resin.  The authority of Secretary for Justice v Lee Siu Kei (supra) relied on by Mr Wong has been overtaken by Nguyen Thang Loi.

40.In sentencing D1 and D2, I have borne in mind the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

41.In relation to the role and culpability of D1 and D2, from the drug paraphernalia found in the premises and the respective admissions of D1 and D2 made both at the scene and back at the station, the conclusion must be that each of the defendants was more than a mere courier or storekeeper.  Together, D1 and D2 were operating a packaging and distribution centre (see Herry Jane Yusuph at paras 62-63).  For their roles and culpability (without at this stage taking into account joint enterprise), 3 months ought to be added to the arithmetic starting point of 78 months.

42.For the element of joint enterprise, D1 and D2 are members of it with D1 clearly in the role of mastermind.  For this aggravating factor, I would add 3 extra months to D1’s starting point, and 2 extra months to D2’s starting point.

43.D1 is a repeat offender albeit having stayed clear of trouble for the last 15 years.  D2 is a person of previous good character.  However, in a case involving such a serious offence as the present one, these count for very little.

44.D1 and D2 pleaded guilty in good time.  They shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify further reduction in sentence in the case of either D1 or D2.

45.I stand back to look at the resultant sentences to see if they are fair, just and balanced having regard to the overall circumstances of the offence and the offenders.  Judging by the presence of the large amount of drug seized, the scale of the operation could not be described as small.  The addition of an extra pair of hands to man the operation added to the gravity of the offence. Overall, I conclude that the sentences though by no means light, are well justified.

(D1 and D2, please stand)

46.The sentence for D1 is 56 months’ imprisonment.

47.The sentence for D2 is 55 months and 10 days’ imprisonment.