The particulars of the charges are as follows.
Charge 1 against D1. It alleges that the 1st defendant on 13 December 2022 at Lower Ground 3rd Floor, carpark, Chuk Yuen South Estate, No. 15 Chuk Yuen Road, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1,746 grammes of a mixture containing 1,377 grammes of heroin hydrochloride.
The 2nd charge against the 1st and the 2nd defendant, that the 1st and the 2nd defendant on the same date at Room 516, 5th Floor, Chui Yuen House, Chuk Yuen South Estate, No. 15 Chuk Yuen Road, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 4,868 grammes of cannabis in herbal form and 2,492.1 grammes of a mixture containing 1,974.3 grammes of heroin hydrochloride.
The 3rd charge against the 1st defendant, that he on 13 December 2022, at Room 10C, 3rd Floor, Hang Wai Industrial Centre, No. 6 Kin Tai Street, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 1,926 grammes of cannabis in herbal form, 56.03 grammes of 3,4-methylenedioxymethamphetamine, 1.72 grammes of tablets containing 3-methylmethcathinone and 34.7 grammes of a solid containing 27.43 grammes of cocaine.
The Facts
The charges arise from these facts. At about 1356 hours on 13 December 2022, 1st defendant was intercepted by police officers outside the lift lobby of Lower Ground 3rd Floor, carpark, Chuk Yuen South Estate, Wong Tai Sin. D1 was carrying a brown paper bag in his left hand. D2 was also present.
Upon search, six mobile phones, a chain of keys and another key were found on D1’s person. Inside the brown paper bag, five transparent plastic bags containing heroin (“P1”) were found. P1 was subsequently confirmed by Government Chemist to contain 1,377 grammes of heroin hydrochloride.
D1 was arrested. Under caution, he admitted that all the dangerous drugs belonged to him. D1 and D2 were then escorted to Room 516, 5th Floor, Chui Yuen House, Chuk Yuen South Estate (“the Flat”) for investigation. The door of the Flat was opened using a key seized from D1. Upon search, four blue plastic gloves, a digital scale, one sealer, and one roll of transparent plastic bags were found on the table in the living room. On the floor of the living room, a carton box containing 10 plastic packets of cannabis (“P2”) and one carton box containing eight plastic packets of heroin (“P3”) were found.
Government chemist confirmed that P2 contained 4,868 grammes of cannabis in herbal form, and P3 contained 1,974.3 grammes of heroin hydrochloride.
In his video-recorded interview, D1 stated, amongst other things, that he owed a debt of about HK$1 million, all due to gambling. He met a man about two months earlier in a pub in To Kwa Wan who asked if he wanted to earn quick money. The man subsequently called D1 and asked him to pick up a box of stuff from a street in To Kwa Wan.
D1 transported it to the Flat. He opened the box and found it contained dangerous drugs, white-coloured powder and plants resembling herbal cannabis together with packaging paraphernalia. He was promised a reward of HK$3,000 to HK$5,000 for each delivery. He had not yet delivered any of the drugs to others. The Flat belonged to D2, his girlfriend of 20 years. D2 had given D1 the key. On the day of the offence, D1 and D2 went to the Flat together. D2 took a jacket and left. D1 received a call instructing him to deliver three blocks of dangerous drugs to To Kwa Wan. He took the drugs and met D2 in the lift lobby.
D2 stated in her video-recorded interview that D1 had been her boyfriend for 20 years. On 13 December 2022, she travelled to Wong Tai Sin from Tuen Mun in a car driven by D1. They went to the Flat together. She went to collect her letters and used the toilet. She gave the keys to D1. The Flat was registered under D2’s name and her son’s name. Her son had moved out about five years earlier.
CCTV footage inside the lift of Chui Yuen House captured D1 and D2 going to the 5th Floor together and going downstairs together on 28 November 2022, 2, 4, 6, 7, 8, 9, 10, 11, and 13 December 2022. On 13 December 2022, D1 was seen leaving the 5th Floor with D2 holding the paper bag in his left hand. The Flat had been tenanted by D2 since 13 March 2012 at a monthly rent of HK$1,508.
D1 was then escorted on the same day to a mini storage at Room 10C, 3rd Floor, Hang Wai Industrial Centre, 6 Kin Tai Street, Tuen Mun (“the mini storage”). Police officers entered using one of the keys seized from D1. Inside a plastic box, the following were found: Four plastic packets of cannabis (“P4”), yellow tablets (“P5”), pink tablets (“P6”), two bags of suspected dangerous drugs (“P7”), and a mooncake box containing silver spoon, crystalline solids (“P8”) and a white plastic spoon.
Government chemist confirmed the contents of the substances seized, referable to the particulars of the charges.
In his video-recorded interview regarding the mini storage, D1 stated that he rented it with a friend for storage of tools. He admitted buying the drugs about two months earlier from a man called “Michael Michael” in a pub in Tsim Sha Tsui for about HK$20,000. The digital scales were for weighing the dangerous drugs and the spoons were for separating them. He would bring the dangerous drugs with him when going out to discos and party rooms.
The estimated retail street value of the drugs was at the high end of $4 million.
D1’s Background and Mitigation
D1 is 55 years old. He was born in Hong Kong and was educated to secondary 4 level. He married at age 22 and has a daughter aged 33 and a son aged 28. He separated from his wife due to his drug addiction. He met D2 around 2005 and they have cohabited since 2006.
He worked as a decoration worker and ran his own renovation business, earning between HK$30,000 to HK$50,000 per month.
D1 has previous drug related convictions. He was convicted of possession of dangerous drugs on three occasions, 1996, 2000 and 2012 and was sentenced to DATC on the later two occasions.
In mitigation, counsel of D1 submitted that D1 acted upon instructions and was not the mastermind. Counsel submitted that D1’s role was that of a courier cum storekeeper. Counsel further submitted that after 2012, D1 has successfully quitted his drug addiction for a long period. Unfortunately, starting in 2021, the economic downturn led to his contractors defaulting on payments. Trapped in financial difficulty, he resorted to gambling and accumulated debts of about HK$1 million. He was tempted and attempted to earn quick money.
During the remand, D1 attended Bible classes and reflected on his wrongdoings.
I have read and considered the mitigation letters and certificates produced. They show that D1 has begun his rehabilitation.
D2’s Background and Mitigation
D2 is 51 years old. She was born in Hong Kong and was educated to secondary 3. She married in 1994 and divorced in 2000 due to her former husband’s gambling and domestic violence. She has been a single parent since. She has one son, now 32 years old, who works as an accounting and auditing clerk. D2 had been employed as a hotel housekeeper since 2014 and 2015. Her father passed away in 2015 and her mother passed away in 2024. She is the youngest of six children.
D2 has a clear record.
In mitigation, counsel for D2 submitted that D2’s role was confined to allowing her flat to be used for storage of drugs. D2 had no involvement in any active trafficking operations. Her role was entirely passive. Counsel emphasised that D2 had been in a 20-year relationship with D1 akin, to that of husband and wife. It was by reason of this longstanding and intimate relationship that she permitted D1 to use the Flat. Counsel cited HKSAR v Chiu Kit and Zhao Hongqing, CACC 210/2009 and 香港特別行政區v黃永信、莫志玲, CACC 342/2011 for the proposition that blind faith and misguided loyalty in a close relationship can be considered as a mitigating factor.
Counsel for D2 further submitted that D2 has contributed to Father Wotherspoon’s anti-drug campaign by submitting her story for local and internet use in which she spoke remorsefully about her experience and gave a strong warning to others to avoid the world of dangerous drugs. Counsel cited HKSAR v Kilima Abubakar Abbas, CACC 143/2016.
I have also read and considered the mitigation letters submitted to this court.
Sentencing Considerations
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, and now consider the six steps as set out in HKSAR v Herry Jane Yusuph.
As both D1 and D2 have trafficked in more than one type of dangerous drug, I adopt the combined approach as explained in HKSAR v Islam SM Majharul and HKSAR v Chan Yuk Leong. The combined approach involves identifying the more or most serious drug in terms of potency as the base drug, then taking into account the secondary drugs by way of an upward adjustment.
First step, identifying the relevant guideline band. The drugs in Charges 1 and 2 include heroin hydrochloride, which is the most serious drug in terms of potency. I identify heroin as the base drug. The relevant guidelines for heroin are set out in HKSAR v Huang Ruifang.
Charge 1 involves 1,377 grammes of heroin hydrochloride. This falls within band (v) of the Huang Ruifang guidelines. On a mathematical calculation, it results in 19 years and 6 months, namely, 234 months.
Charge 2 involves 1,974.3 grammes of heroin hydrochloride and 4,868 grammes of cannabis in herbal form. The heroin falls within band (vi). On a mathematical basis, it results in 20 years and 6 months, namely, 246 months.
As for the cannabis component in Charge 2, counsel for D2 submitted that the offence was committed on 13 December 2022 before the Court of Appeal’s decision in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, on 20 January 2023.
Counsel relied on HKSAR v Li Gwing Chu CACC 191/2024, at paragraph 23, and submitted that Nguyen Thang Loi does not strictly apply. The previous approach under the Attorney General v Tuen Shui Ming CAAR 12/1994, provided for a discount of up to 1 year from the cannabis resin tariff for herbal cannabis. I accept that Nguyen Thang Loi does not apply to this case.
According to Tuen Shui Ming, 4,868 grammes of cannabis in herbal form falls within the band of 3,000 to 6,000 grammes, attracting 24 to 36 months’ imprisonment. On a mathematical calculation, it results in 31 months. The cannabis component converts to a negligible quantity of heroin equivalent, approximately 2 grammes, and does not materially affect the overall starting point.
Hence, I adopt a modest upward adjustment of 2 months to the Charge 2 starting point to account for the cannabis component. The adjusted notional starting point for Charge 2 is 248 months, 20 years and 8 months.
Charge 3 involves 27.43 grammes of cocaine, 56.03 grammes of MDMA, 1,926 grammes of cannabis in herbal form, and 1.72 grammes of 3-methylmethcathinone. As Charge 3 contains no heroin, I identify cocaine as the base drug within this charge, being the most serious of the constituent drugs. The relevant guideline for cocaine is also set out in Huang Ruifang. 27.43 grammes of cocaine falls within band (ii). On a mathematical basis, it results in 6 years and 3 months, namely, 75 months.
The MDMA component (56.03 grammes) attracts a notional starting point of approximately 4 years, under the guidelines in the Secretary for Justice v Hii Siew Cheng. The cannabis component, 1,926 grammes, falls within the band of under 2,000 grammes under Tuen Shui Ming guidelines.
On a mathematical basis, it attracts approximately 15 months. The 3-methylmethcathinone (1.72 grammes) is a negligible quantity and does not affect the sentence. I adopt an upward adjustment of 5 months from the cocaine starting point to account for the secondary drugs. The adjusted notional starting point for Charge 3 is 80 months, namely, 6 years and 8 months’ imprisonment.
For the global crosscheck, the total heroin across Charges 1 and 2 is 3,351.3 grammes. Converting the Charge 3 drugs to heroin equivalent produces approximately 33 grammes. The total heroin equivalent across all three charges is approximately 3,385 grammes. This falls within band (vi) of the Huang Ruifang guidelines. On a mathematical basis, it results in 22 years and 2 months (265 months) imprisonment. With an upward adjustment of 4 months for all secondary drugs, the global adjusted notional starting point is 269 months, namely, 20 years and 5 months.
D2 faces Charge 2 only, 1,974.3 grammes of heroin hydrochloride and 4,868 grammes of cannabis in herbal form. As set out above, the heroin (based drug) attracts a notional starting point of 246 months and the cannabis component adds approximately 2 months. The adjusted notional starting point for D2 is 248 months (20 years and 8 months).
I have conducted the three cross-check tests for Charge 2. The absurdity test (assuming all 6,842.3 grammes were heroin) produces approximately 294 months; assuming all were cannabis produces approximately 39 months. The conversion test (converting cannabis to heroin equivalent) produces approximately 246 months. The ratio test produces approximately 113 months. These results confirm that the combined approach using heroin as the base drug with a modest upward adjustment is appropriate.
Second step: the defendant’s role and culpability, and the third step: placement within the guideline band. I accept that on the facts, D1 was acting as a courier and storekeeper. He acted on the instructions of another person, picked up the drugs, and stored them at the Flat and the mini storage. He was about to make a delivery when intercepted. He was promised a reward of HK$3,000 to $5,000 per delivery. I note that packaging paraphernalia, namely, a digital scale, a sealer, plastic gloves, and plastic bags were found at the Flat. D1 also admitted that the scales were for weighing the drugs and the spoons at the mini storage were for separating the drugs. I am not persuaded that D1 was merely a courier in its purest sense. That said, there is still a shortage of evidence to show that D1 was himself an actual or direct trafficker. In the circumstances, I do not consider that D1’s sentence should deviate from the guidelines for couriers and storekeepers.
The notional starting points for D1 remain as stated. Charge 1, 234 months; Charge 2 248 months; Charge 3, 80 months; and on a global basis, 269 months.
Counsel for D1 urged this court to take into account the role of D1 concerning Charge 3, namely the subject drugs were, in short, for social trafficking, hence, not to treat it as an enhancing factor for reason that multiple types of drugs were trafficked. It is an attractive argument proffered by counsel, however, when multiplicity of drugs is involved, it is more appropriate to deal with it separately from the assessment under the second step.
As I have said, I still treat D1’s role being the lowest in the trafficking hierarchy as per Herry Jane Yusuph.
D2 was the registered tenant of the Flat since 13 March 2012. She gave D1 the key. CCTV footage shows D1 and D2 going to the 5th Floor together on 10 occasions between 28 November and 13 December 2022. I accept that on the facts, D2’s role was that of a storekeeper - she allowed her flat to be used for the storage of dangerous drugs. As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are devised for those at the bottom of the trafficking hierarchy, namely, the courier or storekeeper. As such, there is no enhancement on account of D2’s role.
Counsel for D2 submitted that D2 acted out of blind faith and misguided loyalty to D1. While I note these submissions, I find that the appropriate place to consider D2’s relationship with D1 is at Step five, when addressing mitigating factors. The notional starting point for D2 remains at 248 months.
Fourth step, aggravating factors. D1 trafficked in four types of dangerous drugs across three charges: heroin, cannabis, MDMA, and cocaine. The multiplicity of drug types is an aggravating factor, reflecting a wider market and enhanced danger to users of illicit drugs, see Chan Yuk Leong. I therefore enhance the individual as well as the overall starting point by 3 months on this account.
I note that D1 has three previous convictions for possession of dangerous drugs and was sentenced to DATC on three occasions. These are convictions for simple possession, not for trafficking. While they demonstrate D1’s longstanding involvement with dangerous drugs, they are not trafficking convictions within the meaning of this second Abdallah supplementary factor, as confirmed in Lee Ming Ho. I do not make any separate enhancement on this account. After the enhancement, the notional starting points for D1 are Charge 1, 234 months; Charge 2, 251 months; Charge 3, 83 months; and on a global basis, 272 months.
D2 trafficked in two types of dangerous drugs in Charge 2, heroin and cannabis. I agree with counsel that D2 was not actively involved in the operation and was only allowing drugs to be stored at the Flat due to her blind faith to D1. I will not enhance the sentence. The notional starting point for D2 remains at 248 months. I find no further aggravating factors beyond those inherent in the offences themselves.
Fifth step, mitigating factors. D1 pleaded guilty at the earliest opportunity, for which he is entitled to the full one-third discount. The sentences after deduction are Charge 1, 158 months; Charge 2, 167 months; Charge 3, 55 months; and on a global basis, 181 months.
As for the personal and family circumstances of D1, including his gambling debts and financial difficulties, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. I note that D1 attended Bible classes during remand and has reflected on his wrongdoings. I will exercise my discretion to reduce the sentence by a further 1 month for his efforts at rehabilitation. The overall sentence for D1 after this reduction is 180 months.
D2 pleaded guilty at the earliest opportunity, for which she is entitled to the full one-third discount. The sentence after deduction is 165 months.
As for D2’s personal and family circumstances, the Court of
Appeal has repeatedly stressed that they carry little weight
in serious drug trafficking cases. However, I have
considered counsel’s omissions regarding D2’s relationship
with D1. D2 had been in a 20-year relationship with D1,
akin to that of husband and wife. It was submitted on
behalf of D1 that he felt sorry for having dragged D2 into this case. In view of how the offence was unveiled, and the circumstances of the case, and the submissions advanced by both the defence and prosecution, I accept that D2 acted out of misguided loyalty and blind faith in D1, and that this influenced her decision to permit the use of her flat for storage of dangerous drugs. Of course, the Flat is part of a public estate. I have not omitted to consider this point.
There is no case directly on point to the present case,
namely a drug trafficking case. I have referred parties to
two reasons for sentence of the CFI, namely, Chu Chui Shan
and Lau Kin Leung [2022] HKCFI 182; and HKSAR v Wong Tsz
Kin, HCCC 427/2016, and invited their submissions. Above
all, these cases are not binding on me, however, they
provide slightly some insights to this court in approaching
the appropriate discount for D2 on this issue.
Having considered all the above factors, I will exercise my discretion to reduce D2’s sentence by 15 months on this account.
As for D2’s contribution to Father Wotherspoon’s anti-drug campaign, D2 has submitted her story for local and internet use, speaking remorsefully about her experience and warning others about dangers of drugs. As the Court of Appeal observed in HKSAR v Kilima Abubakar Abbas, it is in the public interest to encourage a prisoner’s effort in this regard. I will exercise my discretion to reduce D2’s sentence by a further 3 months.
D2’s sentence after all reduction is 147 months, 12 years and 3 months.
Step six, totality and overall fairness. I have stood back and considered D1’s sentence as a whole. D1 has trafficked in very large quantities of heroin, together with substantial quantities of cannabis, MDMA and cocaine, with a total estimated street value exceeding HK$4.8 million. The sentence is undoubtedly severe. However, having regard to the seriousness of the offences and D1’s role and culpability, I am satisfied that a total sentence of 180 months (15 years) is just, fair and balanced to the offences as well as to D1.
As for D2, I have stood back and considered the sentence as a whole. D2 has trafficked in a very large quantity of heroin and cannabis. The sentence is undoubtedly severe, and may carry an impact on D2, in light of her personal background as a single parent with clear record. However, having regard to the seriousness of the offence, I am satisfied that the sentence of 147 months, namely, 12 years and 3 months, is just, fair and balanced to the offence as well as to D2.
Sentence
1st defendant, you are therefore sentenced as follows. On Charge 1, 158 months’ imprisonment. Charge 2, 167 months’ imprisonment. Charge 3, 55 months’ imprisonment.
The sentences on Charges 1 and 2 are to run concurrently. 13 months of Charge 3 shall be served consecutively to the concurrent sentences on Charges 1 and 2. So the sentence on the remainder of Charge 3 is to run concurrently. D1 is therefore sentenced to a total of 180 months’ imprisonment, namely, 15 years’ imprisonment.
D2, you are sentenced on Charge 2 to 147 months’ imprisonment, namely, 12 years and 3 months’ imprisonment.
