CRIMINAL CASE NO. 127 OF 2010
COURT: The defendants can remain seated whilst I proceed to sentence them.
This matter was set down for a trial to commence on 2 November of this year. On 22 September, the 1st defendant, Ho Ka-lun (“Ho”), pleaded guilty to the 1st count of trafficking in dangerous drugs. On the same day, the 2nd defendant, Cheung Man-kit (“Cheung”), pleaded guilty to the 2nd count of trafficking in dangerous drugs and the 3rd count of trafficking in dangerous drugs. He pleaded not guilty to the 4th count of manufacturing dangerous drugs.
A Summary of Facts was then admitted by each of them. The prosecution requested and the defendants raised no objection to the 4th count being left on the court file, not to be proceeded without the leave of the court. On that occasion, it was agreed to stand over the mitigation and sentence of both Ho and Cheung until the conclusion of the trial of the then 3rd defendant To Wai-kit (“To”).
Given the earlier indications from the prosecution and the defence counsel it was agreed that 11 November, that is, today, was a suitable date to proceed with the sentencing of Ho and Cheung, and, in the event that To was convicted after trial, he also.
However, the matters took a different course. On 2 November 2010, the day that To’s trial was to commence, he pleaded guilty to an amended indictment charging him with one count of trafficking in dangerous drugs. He admitted the Summary of Facts, and, given the date for sentencing of Ho and Cheung was already fixed, it was agreed that the sentencing of To should be dealt with on the same day.
The Summary of Facts in respect of each of the defendants can be dealt with collectively. There were, as it transpires, two Summaries of Facts. There is a crossover in part as to matters referred to, but it suffices for me, for the purposes of sentencing, to summarise it as follows.
In the early afternoon of 17 August 2009, police officers were keeping surveillance on a row of lockers located on the 1st Floor of Phase 3 of the New Town Plaza in Shatin. These lockers were available to the public, and, upon the payment of a fee, goods could be deposited in them and a code which enabled the locker to be reopened later was provided.
The police conducting the surveillance saw two men - as it transpired they were Cheung and To - standing in the vicinity of these lockers. Each appeared to be carrying a package or parcel. Cheung put the paper bag that he was carrying into Locker No. 4. To put the plastic bag he was carrying into Locker No. 5. Each then closed the respective locker and were seen to take the receipts upon which the codes to reopen the lockers was printed.
About 50 minutes later, Ho was observed to approach the bank of lockers. He opened Locker No. 5 and took out the plastic bag which had earlier been placed there by To. He was immediately detained by the police. Inside the plastic bag they found two blocks of suspected dangerous drugs wrapped in adhesive tape. When asked by the police what this was he immediately replied, “It’s coke.” Later, he told them when interviewed that he knew that the box that he had taken from Locker No. 5 contained cocaine and that he had been paid $1,000 to collect it.
The Government Chemist analysed the contents of the plastic bag which had been taken from Locker No. 5 and determined it to be 1,001.59 grammes of a solid containing 709.35 grammes of cocaine hydrochloride which it was agreed in the Summary of Facts was valued in excess of HK$700,000.
To, for his part, admitted that he knew that the plastic bag that he had placed in Locker No. 5 and which was taken out by Ho contained dangerous drugs, albeit it that when first questioned by the police he refused to answer those questions.
Thus it is that both To and Ho are both convicted of, and to be sentenced for, trafficking in the 709.35 grammes of cocaine hydrochloride placed in, and taken from, Locker No. 5.
For the purposes of sentencing in respect of both Ho and To, counsel on their behalf have emphasised their pleas of guilty. In the case of each of them, there is reference to their family circumstances which led to them being inveigled into trafficking in cocaine. Mr Donald on behalf of To readily accepts, however, that the authorities make it abundantly clear that it would only be in exceptional circumstances that such would be a mitigating factor.
Ho has not beenconvicted of any offences in respect of trafficking in dangerous drugs but he has been convicted of assault and unlawful sexual intercourse. To was in 2003 convicted in the District Court of trafficking in dangerous drugs and sentenced to 3 years and 8 months’ imprisonment. Mr Donald has confirmed this morning that the drugs on that occasion were also cocaine.
With respect to the antecedents of each of Ho and To, I am satisfied that there is nothing which would enable me to grant them a discount in excess of the one-third which is usually provided for a plea of guilty. In the case of each of them, bearing in mind the authorities and the quantity of drugs concerned, I adopt a starting point for sentence of 20 years. I am now referring to Ho and To. Giving them full discount for the plea of guilty, I am satisfied, bearing in mind their role in this exercise relative to that of Cheung, a sentence of 13 years’ imprisonment in the case of each of them is appropriate and that is the sentence that I pass.
I will now come to deal with Cheung, who is, by any account, in a different situation. The Summary of Facts reveals that at the same time that To placed the plastic bag containing cocaine hydrochloride into Locker No. 5, Cheung was observed to also place a paper bag into Locker No. 4. Shortly after Ho was arrested the police officers detained Cheung and To.
When questioned by the police, Cheung admitted that he had placed cocaine in Locker No. 4 in a paper bag. The receipts which contained the access codes for both lockers were found in his shoulder bag. The police opened Locker No. 4 using one of those receipts and found inside a paper box which contained one block of suspected dangerous drugs.
The Government Chemist subsequently determined that the contents of Locker No. 4 were 990.34 grammes of a solid containing 668.77 grammes of cocaine hydrochloride.
Originally, Cheung and To were jointly charged with trafficking in the drugs placed in both lockers. Ultimately, the prosecution accepted that To’s offer to plead guilty to only the amount that he carried and placed in Locker No. 5 was acceptable. As will be seen, this was a proper course given what next transpired.
When the police searched Cheung at the Shatin Police Station they found in his shoulder bag a resident’s card for premises at Mountain Shore, which is located at No. 8 Yuk Tai Street, Ma On Shan. He was taken there under police guard and as it transpires arranged for police to have access to those premises. What they found was in effect a warehouse containing a vast quantity of cocaine.
Cheung took the police into the premises and showed them where the drugs were stored. There were blocks of cocaine in a safe. Cheung gave the police the combination to open it. There were further blocks of cocaine found in two locked suitcases. Cheung gave the police the code numbers to allow them to open one of them and the key to allow them to open the other.
The Government Chemist determined that the drugs found in these premises consisted of 31,542.65 grammes of powder and solids, containing 702.76 grammes of cocaine and 21,726.38 grammes of cocaine hydrochloride. It is an Agreed Fact that the value of all of the drugs Cheung admitted trafficking in, that is, the contents of Lockers Nos. 4 and 5 and the contents of the Mountain Shore property, was in excess of HK$23 million.
Cheung was interviewed on two occasions. He readily told the police that he had been involved in trafficking in these quantities of cocaine. He told them that he had himself been employed by one “Ah Fung” to deliver drugs on his behalf since July of 2009. To that end, he had, with financial assistance from “Ah Fung”, rented the premises at Mountain Shore. He had purchased the suitcases and the safe to store the drugs. He was to be paid $2,000 by “Ah Fung” for each delivery he would subsequently make.
The delivery of the drugs to the two lockers at New Town Plaza, he said, was one of those deliveries, albeit that it was the first he had undertaken. He was instructed by “Ah Fung” to put the dangerous drugs into two lockers, namely, Lockers Nos. 4 and 5, and thereafter to telephone a number given to him and then persons thereafter would, having been given the access codes by him, collect the dangerous drugs.
Returning to the acceptance by the prosecution that To may not have been aware that there was dangerous drugs in the parcel carried by Cheung, it is apparent that this was on the basis that in To’s case he made no admissions. Certainly, the same considerations could not apply to Cheung.
It was Cheung who arranged for the parcels to be placed in both lockers. He knew precisely what was involved insofar as the contents of the packages which were placed in Locker No. 4 and Locker No. 5. Thus it was appropriate for him to be charged with trafficking in the total amounts. That is reflected in Count 2, to which he has pleaded guilty. The total amount of drugs for the purposes of Count 2 for sentencing is 1,378.12 grammes of cocaine.
Bearing in mind the authorities, it is, in my opinion, appropriate after trial to adopt a starting point for sentence for that quantity of trafficking in cocaine of 23 years’ imprisonment. Allowing for a full discount from that for his plea of guilty, a sentence of 15 years’ imprisonment is appropriate and that is the sentence that I will impose in respect of Count 2.
As far as Count 3 is concerned, the Court of Appeal in Abbas, which has been reported at [2009] 2 HKLRD 427 provided guidelines for sentencing in very substantial quantities of heroin which are in excess of the upper limits of the guidelines provided for in The Queen v Lau Tak Ming [1990] 2 HKLR 370. These guidelines, that is, the guidelines in Abbas, apply with equal force to those trafficking in cocaine. All counsel today accept that.
It is apparent from the guidelines in Abbas that the Court of Appeal intended there to be meaningful distinctions in sentences passed on those who traffic in dangerous drugs at the top end of the range in Lau Tak Ming and those who traffic in vast quantities, as has Cheung in the instant case. The Abbas guidelines, without enhancement for additional aggravating factors, expire after the amount of drugs trafficked exceeds 15 kilograms. Thereafter, sentences are at the discretion of the court.
The guidelines do, however, anticipate a sentence in excess of 5 years when the quantity of dangerous drugs trafficked is significantly in excess of 15 kilograms. Given that the quantity of dangerous drugs in Count 3 is 22.429 thousand grammes, it is in itself in excess of the upper limit of the guidelines provided for in Abbas by 7,000 grammes.
I accept that the quantity of the dangerous drugs being trafficked at this level may not be the most critical factor in determining a proper starting point for sentence. The role of the defendant must also be reflected. I am satisfied insofar as Cheung is concerned that he was undoubtedly a trusted aide to the mastermind. I accept that he is himself not the mastermind. Nevertheless, as I indicated to counsel in the course of mitigation, it is manifest that the amount of drugs involved and its value would not be entrusted to someone who is not actively a part of the whole exercise of trafficking. I take this into account when determining the proper starting point for sentence for Cheung.
I also take into account that there must be a meaningful distinction between the roles played by Cheung and that of his co-accused. It is apparent from the Summary of Facts that their roles, whilst significant, as is the role of any courier in drug trafficking offences, bears no relevance to that of Cheung. I consider in the case of Cheung that the appropriate starting point for sentence on Count 3 is 32 years’ imprisonment. A full discount of one-third from that 32 years would result in a sentence of 21 years’ imprisonment and that is the sentence that I will impose on Count 3.
I have now to consider whether any part of the sentence on Count 2 should be consecutive to the sentence on Count 3. I am satisfied that in all of the circumstances that is not necessary. Had Cheung been convicted of trafficking in 248700 grammes, which is roughly the amount of the drugs in Counts 2 and 3, I believe that an appropriate starting point for sentence taking into account all of the factors indicated in Abbas would, at the same time, be one of 32 years’ imprisonment. I will therefore order that the sentence on Count 2 be concurrent to the sentence on Count 3. Thus Cheung’s sentence is one of in total 21 years’ imprisonment.