HKSAR v FONG HEUNG WONG

DCCC 125/2025

[2025] HKDC 2157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 125 OF 2025

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REASONS FOR SENTENCE

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1.D1 and D2 are both convicted on their own pleas and agreement to Summary of Facts to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.At around 0309 hours on 28 April 2024, the Customs officer intercepted D1 and D2 at the green channel of the Customs Arrival Hall B, Level 5, Passenger Terminal 1, Hong Kong International Airport.  At the material time, D1 was pushing a trolley with two suitcases, namely a black suitcase and a white suitcase on the trolley.  Customs officers intended to conduct baggage search on the two suitcases.

3.Upon enquiry, D1 claimed to PW2, one of the officers, that the two suitcases belonged to him.  When asked to unlock them, D1 tried to contact his friend in Thailand to ask for the password codes for the locks to the two suitcases, but D1 was not able to reach his friend.  PW2 then broke open the two suitcases.  A total of 40 packs of suspected herbal cannabis were found inside the two suitcases and they were seized.

4.According to the Government Chemist’s Certificate, these 40 packs seized contained a total of 20,047 grammes of herbal cannabis, which is controlled under Part 1 of the First Schedule of the Dangerous Drugs Ordinance, Cap 134.  Each pack contained around 500 grammes of herbal cannabis.

5.D1 was arrested.  Under caution, he stated, inter alia, that someone passed him the two suitcases in Thailand and asked him to bring them back to Hong Kong.  He was paid HK$2,000 to carry them.  Someone would pick D1 up to collect the two suitcases in Hong Kong.

6.D2 was arrested.  Under caution, he stated, inter alia, that the two suitcases did not belong to him and he did not know anything about them.

7.In the video-recorded interview conducted on D1, under caution, D1 stated, inter alia, that:

(a) He owed debts of around HK$200,000 and his mother helped him to repay the debts; and

(b) He had been unemployed for nearly one year and did not have any income. He was previously a customer manager at law firm.

8.In the video-recorded interview conducted on D2, under caution, D2 stated, inter alia, that:

(a) He owed other people debts. He made a living through part-time jobs and earned several thousand dollars a month. He barely had enough to pay for his living expenses and did not have any other source of income;

(b) He went to Thailand between 26 and 28 April 2024 for sightseeing and travelling. Although D2 only earned several thousand dollars per month, he paid for the return ticket and hotel accommodation for over HK$4,600 out of his own pocket. D2 booked a business class for his inbound flight because it was only HK$1,900 only;

(c) He acquainted D1 two days ago outside a hotel in Thailand because they were all Hongkongers.

(d) He did not have any check-in baggage and D1 only had a rucksack when they checked out the same hotel. After they separated for a while, when D1 and D2 met again, D1 was carrying the two suitcases; and

(e) D1 and D2 were on the same inbound flight because the flight matched their schedule.

9.The estimated street value of the herbal cannabis concerned was HK$4,350,199.

10.At the material times, D1 and D2 unlawfully trafficked in a dangerous drug, that is, the 40 packs of herbal cannabis.

Criminal record

11.Both defendants have clear record.

Mitigation – D1

12.D1 was aged 47 at the time of the offence, now 48.  He was a university graduate.  He is undergoing divorce proceedings, and he is a father of two children, aged 12 and 9.  He used to work as a client officer in law firms between 2009 and May 2023.

13.It is said that he spent around HK$1 million on his mother-in-law’s cancer treatment.  As a result, he owed about HK$200,000 in debt.

14.He lost his employment during COVID, and subsequently he was unable to work due to emotional problems.  It is said that he has been receiving psychiatric treatment at Castle Peak Hospital since February 2024, and is diagnosed with adjustment disorder and mental and behavioural disorder due to harmful use of alcohol.  While in remand, he continued to have psychiatric follow-up, and was prescribed with antidepressants, sleeping pills, and neuropathic pain medication.

15.Defence counsel lodged with court mitigation letters from D1, his mother, elder sister, district councillor, and chaplain. These letters showed that the family members are all very supportive of D1 in his rehabilitation.  They were shocked and devastated by the arrest of D1.  D1’s mother believed that D1 was under bad influence at the material times.  They all said that D1 used to be a diligent, filial, respectful, law-abiding, hardworking, and helpful person.  It is said that D1 needs to take care of two children, and he also needs to rely on psychiatric medication.

16.The district councillor who wrote the mitigation letter said that D1 now regrets his offence and accepts responsibility for what he has done.  It is said that D1 has in the past served the community and cared for the disadvantaged people, and demonstrated good character.

17.The chaplain said that D1 has contributed to the NGO Voice for Prisoners by sharing his story of hardship, regret, and warning to others, which has been used in posters and social media to help vulnerable people avoid making the same mistake.

18.D1 in his own letter to this court said that he is deeply remorseful and feels guilty towards his family.  He acknowledged this is a big mistake that he has made, and has deeply reflected. He hopes for a chance to reform, to care for his mother and his family, and promises not to re-offend.

19.Defence counsel submitted that relying on the sentencing guidelines for trafficking herbal cannabis in the Court of Appeal case HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the sentencing starting point in this case is around 71 months. 

20.He also referred this court to the Court of Appeal case HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, where the Court of Appeal considered the aggravating factors listed in HKSAR v Abdallah [2009] 2 HKLRD 437.  As quoted in paragraph 32 of the Lee Ming Ho judgment, it is said that it will be an aggravating factor calling for the enhancement of the starting point where, for example:

(1) An international element is involved;

(2) The trafficker has previously been convicted of trafficking in dangerous drugs;

(3) The trafficker is shown to be a mastermind or senior player, such as a financier, in the syndicate; or

(4) The offender is shown to have engaged a young person to assist in the trafficking.

21.In paragraph 52 of the Lee Ming Ho case, the Court of Appeal discussed the approach in Abdallah and commented that, in the light of Herry Jane Yusuph case[1] and its greater emphasis on identifying role and culpability when assessing the gravity of the offence and the appropriate sentencing starting point, some of the factors stipulated in Abdallah ought more naturally and rationally to be taken into account in the assessment of the role and culpability, rather than treat as separate, discrete aggravating features increasing the starting point.

22.Furthermore, the Court of Appeal pointed out that, since the Herry Jane Yusuph case, the Court has moved away from a “one size fits all” approach on the basis that every courier is the same to a more nuanced examination by the sentencing judge of the role and culpability.

23.Defence counsel for D1 also referred to the case of HKSAR v Man Hoi Ling and Another, DCCC 587/2024.  The defendants there trafficked 5,990 grammes and 7,057 grammes of herbal cannabis from Thailand to Hong Kong.  The court observed that had the charges been consolidated into a single offence involving a total of 13,047 grammes, the appropriate sentencing starting point would have been 60.1 months, with an additional 4 months imposed for a cross-border element, representing a 6.7% increase. 

24.It is said that the cited District Court cases and the present case both involved trafficking herbal cannabis by air, concealed in luggage and brought in from overseas, without organiser role such as being mastermind or senior player.  Applying these principles in the present case, where D1 was intercepted at the airport, there was an international element, D1 has no previous criminal record or drugs trafficking record, he did not have an organiser role, he was not the mastermind or senior player, and he did not recruit any young persons to assist in the trafficking.  Based on the above, it is submitted that the appropriate increase in sentence for the international element would be around 6 to 7%.

25.Defence counsel also submitted that D1 has provided two non-prejudicial statements to the authorities and has further expressed willingness to act as a prosecution witness.  He submitted that this should be counted as a valid mitigating factor and he referred this court to the case of Z v HKSAR (2007) 10 HKCFAR 183.

26.In the present case, it is said that although the authorities was aware of D1 and D2’s conduct and roles at the Hong Kong airport, only D1’s statement provided details of the prior drug trafficking activities and the roles of the relevant people in Thailand.

27.Regarding D1’s assistance to the authorities, it is submitted that D1 has made a full and honest disclosure, he has disclosed the trafficking model adopted by the defendants and other persons who led a leading role, and he provided the authorities with the passwords of the two mobile phones.

28.It is also submitted that by assisting the authorities, D1 is experiencing increased treats to himself and his family’s safety.  Although D1 and D2 were held in different blocks/wings in Stanley Prison, D2 had told other inmates that D1 was a “golden finger”, and D1 was verbally insulted and mocked by other inmates on numerous occasions whilst in prison.

29.In the case of Z v HKSAR, the Court of Final Appeal at paragraph 23 stated that for defendants who had provided assistance to the authorities but without testifying, the Court of Appeal generally grants a 40% reduction (including the one-third discount for guilty plea). 

30.Defence counsel also referred this court to the cases of HKSAR v Luk Chi Yan Adison, CACC 26/2011, and HKSAR v Luk Chi Kan[2024] 4 HKLRD 532, where the defendant who assisted the police and led to the co-accused entering a guilty plea, received a discount of 45%.

31.Defence counsel for D1 submitted that in the present case, D2 indicated his guilty plea after D1 gave the non-prejudicial statements.  It is submitted that D1’s statement directly contributed to the guilty plea of D2 as D1’s statement implicate D2’s role in the case.  He asked the court to adopt a lenient approach and reduce the sentence for around 45% to reflect D1’s assistance to law enforcement.

Mitigation – D2

32.D2 is now aged 27 years old, single, born and raised in Hong Kong.  He has received education up to Form 5.  After leaving school, he worked in several jobs, including semi-skilled worker for plant maintenance and operation, formwork worker at construction site.  He is the eldest child of his parents.  His parents are both in their 50s, both working. He also has a younger brother who works as a bank officer.  D2 resided with his family at the time of the offence.

33.Defence counsel lodged with court the mitigation letters from D2 and his mother.  His family has expressed support and guidance towards D2’s rehabilitation.  They are confident that D2 would not re-offend upon his release from prison.

34.It is said that D2 is sincere and committed to lead a positive lifestyle.  He is currently receiving counselling, education and classes within the correctional institute.  He now feels extremely remorseful as to what he has committed.

35.Defence counsel conceded that following the sentencing tariff in Nguyen Thang Loi, the sentencing starting point is around 71 months’ imprisonment in this case.

36.She also submitted that D2 was not the mastermind nor the instigator of the trafficking offence.  He was also not the person who recruited D1 into this drug trafficking trade.  He was merely a courier acting upon instructions.  In this regard, it was submitted that Nguyen Thang Loi case is appropriate sentencing tariff to adopt and no enhancement is required.

37.Defence counsel for D2, however, also conceded that there is aggravating factor of international element in the present case, for the fact that D2 imported the dangerous drugs from Thailand to Hong Kong. She invited the court to adopt not more than 3 months’ sentence enhancement, taking into account the substantial notional starting point and D2’s previous good character.  It is also submitted that D2’s timely plea would entitle D2 to have the full one-third sentencing discount.

Discussion

38.The court has carefully considered mitigation submissions by both defence counsel as well as legal authorities cited, medical report and medical consultation notes of D1, and mitigation letters lodged.

39.Trafficking in dangerous drugs is a very serious offence.  Personal background and circumstances of the defendant are seldom a mitigating factor. 

40.On conviction upon indictment of this offence, a person is liable to a fine of $5 million and to imprisonment for life.

41.Both D1 and D2 here are couriers for drug importing into Hong Kong, obviously hired by a syndicate.  They discharge vital role and should expect to receive condemned punishment aligned to tariff guideline.

42.Following the sentencing guideline in the Nguyen Thang Loi case, the sentencing starting point is, as conceded by both defence counsel, 71 months’ imprisonment. 

43.As they took drugs into Hong Kong from Thailand, international element is present.  This is clearly an aggravating feature in sentencing[2]. The sentencing starting point is enhanced by 5 months to 76 months’ imprisonment.

44.D1 committed the offence together with another, ie D2, and this constitutes an aggravating feature in sentencing.  The same is enhanced by another 3 months to 79 months’ imprisonment.

45.D1 has pleaded guilty and he is entitled to a full one-third sentencing discount.  Further, he has made two non-prejudicial statements and was prepared to testify against D2.  After studying the chronology of events, in the view of this court, the same was instrumental to the guilty plea of D2.  This court is therefore willing to discount the sentence of D1 by 45% (including one-third discount for guilty plea).

46.D1 is therefore sentenced to 43 months and 12 days’ imprisonment.

47.Coming to the case of D2, the court will adopt the same enhanced sentencing starting point of 79 months’ imprisonment as in D1’s case.

48.The only valid mitigating factor in D2’s case is D2’s timely guilty plea, for which he is entitled to full one-third sentencing discount.  D2 is therefore sentenced to 52 months and 18 days’ imprisonment.