區域法院（刑事）HH Judge A. J. Woodcock6/12/2021[2021] HKDC 1543
DCCC608/2021
A A
DCCC 608/2021
[2021] HKDC 1543
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 608 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Ng Kwan-ming F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 7 December 2021 at 3.00 pm H
Present: Ms Memi Ng, counsel on fiat, for HKSAR
Mr Oliver Howell Davies, instructed by Wong & Co, for
I the defendant I
Offence: (1) & (3) Dealing with goods to which the Dutiable
J Commodities Ordinance applies (處理應課稅品條例適用的貨 J
品)
(2) Trafficking in a dangerous drug (販運危險藥物)
K K
(4) Trafficking in dangerous drugs (販運危險藥物)
L L
---------------------
M Reasons for Sentence M
---------------------
N N
1. The defendant has pleaded to two counts of dealing
O O
with goods to which the Dutiable Commodities Ordinance applies,
contrary to sections 17(1) and 46(3) of the Dutiable Commodities
P P
Ordinance, Cap 109. That is Charges 1 and 3. He has also
Q pleaded to two counts of trafficking in a dangerous drug, Q
contrary to section 4(1)(a) and (3) of the Dangerous Drugs
R Ordinance, Cap 134. That is Charges 2 and 4. R
S S
Particulars of the Charges and Summary of Facts
2. These offences came to light and the defendant was
T T
arrested on 1 February 2021 when customs officers carried out an
U anti-illicit cigarette operation in Yuen Long, New Territories. U
CRT25/7.12.2021/NYL 1 DCCC 608/2021(1)/Sentence
V V
A A
3. They saw the defendant driving out of a scrapyard in a
light goods vehicle and alight to lock the gate behind him. He
B B
looked nervous and suspicious, so the customs officers
C intercepted him. C
D 4. His vehicle was searched and some opened carton boxes D
were found in the vehicle containing a total of 42,400 sticks of
E E
cigarettes of assorted brands, the particulars of Charge 1.
F F
5. Under caution, he said that he had taken cigarettes
G out of the scrapyard to deliver to others. He knew that duty had G
not been paid for these cigarettes.
H H
6. Customs officers also found in various places inside
I I
the vehicle a total of 43 transparent resealable plastic bags
containing cannabis in herbal form. The Government chemist later
J J
confirmed there was a total of 177.96 grammes of cannabis in
K
herbal form, the particulars of Charge 2. K
L 7. Under caution, the defendant told the customs officers L
that the drugs were “grass”, which he knew meant cannabis. He
M denied possession of the cannabis. M
N N
8. Two more keys were found in the defendant’s trouser
pocket and he told the customs officer that one key opens the
O O
gate of the scrapyard and the other the entrance to a yellow
P container inside the scrapyard. P
Q 9. Upon entry, customs officers found a large number of Q
cigarettes inside the yellow container. There was a total of
R R
626,160 sticks of cigarettes of assorted brands and none of the
packaging bore the HKSAR health warning, which meant duty had
S S
not been paid on those cigarettes. These are the particulars of
T Charge 3. T
U U
CRT25/7.12.2021/NYL 2 DCCC 608/2021(1)/Sentence
V V
A A
10. Under caution, the defendant admitted that he had
bought the cigarettes from another to sell. He knew that duty
B B
had not been paid.
C C
11. Customs officers also found a key to a locked white
D container inside the scrapyard and opened it to discover a very D
pungent smell of cannabis. Inside various boxes, they found many
E E
transparent resealable plastic bags and plastic vacuum packing
bags containing a total of 9,982.2 grammes of cannabis in herbal
F F
form, as well as a box containing 172 metallic containers
G containing a total of 79.36 grammes of a liquid containing G
74.78 grammes of tetrahydrocannabinol, being a tetrahydro
H derivative of cannabinol. These are the particulars of Charge 4. H
I I
12. With the 172 metallic containers of cannabis oil were
101 vape pens in the same box. Inside the white container were
J J
also bundles of plastic bags and transparent resealable plastic
K
bags, as well as two electronic scales, one heat sealer, four K
rolls of plastic tape and two pairs of scissors.
L L
13. Under caution, the defendant said that he did not know
M who owned the herbal cannabis or the cannabis oil; both the M
yellow and white containers were rented by his bosses from the
N N
mainland. He had taken the herbal cannabis found in his vehicle
from the white container to deliver as directed.
O O
P 14. There was no dispute that the defendant had rented the P
light goods vehicle from its registered owner since June 2020
Q and he had the only key. Q
R R
15. It was agreed that the value of the total amount of
cigarettes from Charge 1 and 3 was $1,871,968 and the potential
S S
duty payable was $1,274,275.36.
T T
U U
CRT25/7.12.2021/NYL 3 DCCC 608/2021(1)/Sentence
V V
A A
16. It was also admitted that the total estimated street
value of cannabis in herbal form from Charges 2 and 4 was
B B
$1,991,391.
C C
Mitigation
D 17. The defendant is now 57 years old and was born in Hong D
Kong. He has been married twice and has two adult children from
E E
his first marriage and a 13-year-old son from his second and
present wife. He is largely financially responsible for them
F F
all, including his ex-wife who has severe health problems and is
G unable to work. He is also financially responsible for her 90- G
year-old mother.
H H
18. The defendant is not a man with a clear record. He has
I I
a total of 14 previous convictions obtained over 13 court
appearances. He has many gambling convictions from the 1980s but
J J
the more serious convictions include five similar convictions to
K
Charges 1 and 3, dealing with goods to which the Dutiable K
Commodities Ordinance applies. On each occasion, he was
L sentenced to terms of imprisonment. Those convictions are dated L
2012, 2017 and 2018.
M M
19. The defendant has written a letter of mitigation
N N
asking for leniency. He said he had only agreed to deliver
cigarettes at the beginning when offered the job. Later when he
O O
was offered more money for delivering cannabis, he was greedy
P and agreed to do it before he was caught red-handed. He gave me P
details of his financial responsibilities to his family. He has
Q said he is remorseful and those that suffer most from his Q
misdeeds are, sadly, his family.
R R
20. Mr Davies has said all he can say on behalf of the
S S
defendant. His best mitigation is his pleas indicated at the
T earliest opportunity. The defendant says that he was recruited T
as a delivery man originally to deliver cigarettes but he was
U later persuaded to deliver cannabis for more money. He says he U
CRT25/7.12.2021/NYL 4 DCCC 608/2021(1)/Sentence
V V
A A
is not the mastermind of the scheme but a foot soldier. There
does not appear to be any evidence that he was the mastermind.
B B
He was earning about $20,000 a month working as a delivery
C driver when he was arrested. Mr Davies confirms he supports both C
families but his present wife does work as a saleslady. I have
D been told to take into account he has no previous convictions D
for drug related offences.
E E
21. Mr Davies has submitted that there are no specific
F F
guidelines for Charges 1 and 3, but obviously, the number of
G cigarettes and the amount of lost revenue in the form of duty is G
relevant to the gravity of the offences. I am reminded that the
H maximum sentence for this offence is 2 years’ imprisonment and a H
fine of HK$1 million.
I I
22. It is submitted that the approximate starting point
J J
for quantity of cannabis resin in excess of 9,000 grammes is 4
K
years’ imprisonment. It has been suggested that this starting K
point is adjusted down to take into account the fact that the
L cannabis is in herbal form. A discount of up to 1 year can be L
appropriate.
M M
23. I was referred to Attorney General v Tuen Shui Ming &
N N
Another [1995] 2 HKCLR 129. I have also taken into account R v
Chan Shu Tong [1996] 4 HKC 515.
O O
P 24. The other substance in Charge 4 I take into account is P
cannabis oil. Mr Davies agrees that there is an increased
Q concentration in cannabis oil when compared to cannabis resin. Q
The concentration of tetrahydrocannabinol is highest in cannabis
R R
oil when compared to both cannabis resin and cannabis in herbal
form. In fact, cannabis oil has an average of about 4 times
S S
higher concentration of THC, tetrahydrocannabinol, than the
T average in cannabis resin. Therefore, tariffs should be adjusted T
accordingly for herbal cannabis or cannabis oil.
U U
CRT25/7.12.2021/NYL 5 DCCC 608/2021(1)/Sentence
V V
A A
25. It is submitted that the sentence for this quantity of
cannabis oil would still be within the discretion of the court
B B
and it should not make any significant difference to the overall
C starting point for Charge 4 of 4 years. C
D Reasons for Sentence D
26. I have taken into account everything said in
E E
mitigation on behalf of the defendant, his previous similar
convictions, the facts of the case, including the number of
F F
cigarettes, the duty that should have been paid, as well as the
G quantity of drugs found, this also includes the value of the G
drugs found.
H H
27. Drug trafficking is a serious offence and deterrent
I I
sentences are appropriate. Here, I agree that the starting point
of 4 years’ imprisonment would be appropriate for the drugs of
J J
both Charges 2 and 4. It has been said that a discount up to
K
1 year could be given in cases involving herbal cannabis. I K
would have given a discount up to 1 year but for the cannabis
L oil, 74.78 grammes of it. It has a much higher concentration of L
THC and should be taken into account. Having considered the
M quantity of that cannabis oil and the quantity of herbal M
cannabis, I intend to reduce the starting point of 4 years by
N N
9 months to reflect that amount of cannabis oil.
O O
28. I appreciate that there are 2 drug charges and the
P drugs of Charge 2 involve 177.96 grammes of cannabis, but I will P
make both charges concurrent to reflect the overall starting
Q point of 3 years and 3 months. I intend to take a starting point Q
of 12 months for Charge 2 and 3 years and 3 months for Charge 4.
R R
29. As for the cigarettes, Charges 1 and 3, I will also
S S
make both charges concurrent and consider the total amount of
T cigarettes from both charges. That amount of cigarettes, their T
value and the duty that should have been paid will attract an
U overall starting point of 18 months’ imprisonment. I intend to U
CRT25/7.12.2021/NYL 6 DCCC 608/2021(1)/Sentence
V V
A A
take a starting point of 6 months for Charge 1 and 18 months for
Charge 3.
B B
C 30. The defendant has pleaded guilty at the earliest C
opportunity and will benefit from a one-third discount. After
D that discount is applied, the defendant is sentenced as follows: D
E E
Charge 1, 4 months’ imprisonment;
Charge 2, 8 months’ imprisonment;
F F
Charge 3, 12 months’ imprisonment;
G Charge 4, 2 years and 2 months’ imprisonment. G
H 31. I have to take into account the totality principle. H
All 4 offences took place on the same day and in the same
I I
location but the nature of the 2 types of offences is very
different. To make all 4 sentences totally concurrent would
J J
ignore that fact. To reflect the gravity of the offences and the
K
facts, I intend to make the 4 months of Charge 1 consecutive to K
the 2 years and 2 months of Charge 4. All other sentences
L concurrent to Charge 4. L
M 32. Accordingly, the defendant is sentenced to a total of M
2 years and 6 months’ imprisonment.
N N
O O
P P
(A J Woodcock)
Q District Judge Q
R R
S S
T T
U U
CRT25/7.12.2021/NYL 7 DCCC 608/2021(1)/Sentence
V V
A A
DCCC 608/2021
[2021] HKDC 1543
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 608 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Ng Kwan-ming F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 7 December 2021 at 3.00 pm H
Present: Ms Memi Ng, counsel on fiat, for HKSAR
Mr Oliver Howell Davies, instructed by Wong & Co, for
I the defendant I
Offence: (1) & (3) Dealing with goods to which the Dutiable
J Commodities Ordinance applies (處理應課稅品條例適用的貨 J
品)
(2) Trafficking in a dangerous drug (販運危險藥物)
K K
(4) Trafficking in dangerous drugs (販運危險藥物)
L L
---------------------
M Reasons for Sentence M
---------------------
N N
1. The defendant has pleaded to two counts of dealing
O O
with goods to which the Dutiable Commodities Ordinance applies,
contrary to sections 17(1) and 46(3) of the Dutiable Commodities
P P
Ordinance, Cap 109. That is Charges 1 and 3. He has also
Q pleaded to two counts of trafficking in a dangerous drug, Q
contrary to section 4(1)(a) and (3) of the Dangerous Drugs
R Ordinance, Cap 134. That is Charges 2 and 4. R
S S
Particulars of the Charges and Summary of Facts
2. These offences came to light and the defendant was
T T
arrested on 1 February 2021 when customs officers carried out an
U anti-illicit cigarette operation in Yuen Long, New Territories. U
CRT25/7.12.2021/NYL 1 DCCC 608/2021(1)/Sentence
V V
A A
3. They saw the defendant driving out of a scrapyard in a
light goods vehicle and alight to lock the gate behind him. He
B B
looked nervous and suspicious, so the customs officers
C intercepted him. C
D 4. His vehicle was searched and some opened carton boxes D
were found in the vehicle containing a total of 42,400 sticks of
E E
cigarettes of assorted brands, the particulars of Charge 1.
F F
5. Under caution, he said that he had taken cigarettes
G out of the scrapyard to deliver to others. He knew that duty had G
not been paid for these cigarettes.
H H
6. Customs officers also found in various places inside
I I
the vehicle a total of 43 transparent resealable plastic bags
containing cannabis in herbal form. The Government chemist later
J J
confirmed there was a total of 177.96 grammes of cannabis in
K
herbal form, the particulars of Charge 2. K
L 7. Under caution, the defendant told the customs officers L
that the drugs were “grass”, which he knew meant cannabis. He
M denied possession of the cannabis. M
N N
8. Two more keys were found in the defendant’s trouser
pocket and he told the customs officer that one key opens the
O O
gate of the scrapyard and the other the entrance to a yellow
P container inside the scrapyard. P
Q 9. Upon entry, customs officers found a large number of Q
cigarettes inside the yellow container. There was a total of
R R
626,160 sticks of cigarettes of assorted brands and none of the
packaging bore the HKSAR health warning, which meant duty had
S S
not been paid on those cigarettes. These are the particulars of
T Charge 3. T
U U
CRT25/7.12.2021/NYL 2 DCCC 608/2021(1)/Sentence
V V
A A
10. Under caution, the defendant admitted that he had
bought the cigarettes from another to sell. He knew that duty
B B
had not been paid.
C C
11. Customs officers also found a key to a locked white
D container inside the scrapyard and opened it to discover a very D
pungent smell of cannabis. Inside various boxes, they found many
E E
transparent resealable plastic bags and plastic vacuum packing
bags containing a total of 9,982.2 grammes of cannabis in herbal
F F
form, as well as a box containing 172 metallic containers
G containing a total of 79.36 grammes of a liquid containing G
74.78 grammes of tetrahydrocannabinol, being a tetrahydro
H derivative of cannabinol. These are the particulars of Charge 4. H
I I
12. With the 172 metallic containers of cannabis oil were
101 vape pens in the same box. Inside the white container were
J J
also bundles of plastic bags and transparent resealable plastic
K
bags, as well as two electronic scales, one heat sealer, four K
rolls of plastic tape and two pairs of scissors.
L L
13. Under caution, the defendant said that he did not know
M who owned the herbal cannabis or the cannabis oil; both the M
yellow and white containers were rented by his bosses from the
N N
mainland. He had taken the herbal cannabis found in his vehicle
from the white container to deliver as directed.
O O
P 14. There was no dispute that the defendant had rented the P
light goods vehicle from its registered owner since June 2020
Q and he had the only key. Q
R R
15. It was agreed that the value of the total amount of
cigarettes from Charge 1 and 3 was $1,871,968 and the potential
S S
duty payable was $1,274,275.36.
T T
U U
CRT25/7.12.2021/NYL 3 DCCC 608/2021(1)/Sentence
V V
A A
16. It was also admitted that the total estimated street
value of cannabis in herbal form from Charges 2 and 4 was
B B
$1,991,391.
C C
Mitigation
D 17. The defendant is now 57 years old and was born in Hong D
Kong. He has been married twice and has two adult children from
E E
his first marriage and a 13-year-old son from his second and
present wife. He is largely financially responsible for them
F F
all, including his ex-wife who has severe health problems and is
G unable to work. He is also financially responsible for her 90- G
year-old mother.
H H
18. The defendant is not a man with a clear record. He has
I I
a total of 14 previous convictions obtained over 13 court
appearances. He has many gambling convictions from the 1980s but
J J
the more serious convictions include five similar convictions to
K
Charges 1 and 3, dealing with goods to which the Dutiable K
Commodities Ordinance applies. On each occasion, he was
L sentenced to terms of imprisonment. Those convictions are dated L
2012, 2017 and 2018.
M M
19. The defendant has written a letter of mitigation
N N
asking for leniency. He said he had only agreed to deliver
cigarettes at the beginning when offered the job. Later when he
O O
was offered more money for delivering cannabis, he was greedy
P and agreed to do it before he was caught red-handed. He gave me P
details of his financial responsibilities to his family. He has
Q said he is remorseful and those that suffer most from his Q
misdeeds are, sadly, his family.
R R
20. Mr Davies has said all he can say on behalf of the
S S
defendant. His best mitigation is his pleas indicated at the
T earliest opportunity. The defendant says that he was recruited T
as a delivery man originally to deliver cigarettes but he was
U later persuaded to deliver cannabis for more money. He says he U
CRT25/7.12.2021/NYL 4 DCCC 608/2021(1)/Sentence
V V
A A
is not the mastermind of the scheme but a foot soldier. There
does not appear to be any evidence that he was the mastermind.
B B
He was earning about $20,000 a month working as a delivery
C driver when he was arrested. Mr Davies confirms he supports both C
families but his present wife does work as a saleslady. I have
D been told to take into account he has no previous convictions D
for drug related offences.
E E
21. Mr Davies has submitted that there are no specific
F F
guidelines for Charges 1 and 3, but obviously, the number of
G cigarettes and the amount of lost revenue in the form of duty is G
relevant to the gravity of the offences. I am reminded that the
H maximum sentence for this offence is 2 years’ imprisonment and a H
fine of HK$1 million.
I I
22. It is submitted that the approximate starting point
J J
for quantity of cannabis resin in excess of 9,000 grammes is 4
K
years’ imprisonment. It has been suggested that this starting K
point is adjusted down to take into account the fact that the
L cannabis is in herbal form. A discount of up to 1 year can be L
appropriate.
M M
23. I was referred to Attorney General v Tuen Shui Ming &
N N
Another [1995] 2 HKCLR 129. I have also taken into account R v
Chan Shu Tong [1996] 4 HKC 515.
O O
P 24. The other substance in Charge 4 I take into account is P
cannabis oil. Mr Davies agrees that there is an increased
Q concentration in cannabis oil when compared to cannabis resin. Q
The concentration of tetrahydrocannabinol is highest in cannabis
R R
oil when compared to both cannabis resin and cannabis in herbal
form. In fact, cannabis oil has an average of about 4 times
S S
higher concentration of THC, tetrahydrocannabinol, than the
T average in cannabis resin. Therefore, tariffs should be adjusted T
accordingly for herbal cannabis or cannabis oil.
U U
CRT25/7.12.2021/NYL 5 DCCC 608/2021(1)/Sentence
V V
A A
25. It is submitted that the sentence for this quantity of
cannabis oil would still be within the discretion of the court
B B
and it should not make any significant difference to the overall
C starting point for Charge 4 of 4 years. C
D Reasons for Sentence D
26. I have taken into account everything said in
E E
mitigation on behalf of the defendant, his previous similar
convictions, the facts of the case, including the number of
F F
cigarettes, the duty that should have been paid, as well as the
G quantity of drugs found, this also includes the value of the G
drugs found.
H H
27. Drug trafficking is a serious offence and deterrent
I I
sentences are appropriate. Here, I agree that the starting point
of 4 years’ imprisonment would be appropriate for the drugs of
J J
both Charges 2 and 4. It has been said that a discount up to
K
1 year could be given in cases involving herbal cannabis. I K
would have given a discount up to 1 year but for the cannabis
L oil, 74.78 grammes of it. It has a much higher concentration of L
THC and should be taken into account. Having considered the
M quantity of that cannabis oil and the quantity of herbal M
cannabis, I intend to reduce the starting point of 4 years by
N N
9 months to reflect that amount of cannabis oil.
O O
28. I appreciate that there are 2 drug charges and the
P drugs of Charge 2 involve 177.96 grammes of cannabis, but I will P
make both charges concurrent to reflect the overall starting
Q point of 3 years and 3 months. I intend to take a starting point Q
of 12 months for Charge 2 and 3 years and 3 months for Charge 4.
R R
29. As for the cigarettes, Charges 1 and 3, I will also
S S
make both charges concurrent and consider the total amount of
T cigarettes from both charges. That amount of cigarettes, their T
value and the duty that should have been paid will attract an
U overall starting point of 18 months’ imprisonment. I intend to U
CRT25/7.12.2021/NYL 6 DCCC 608/2021(1)/Sentence
V V
A A
take a starting point of 6 months for Charge 1 and 18 months for
Charge 3.
B B
C 30. The defendant has pleaded guilty at the earliest C
opportunity and will benefit from a one-third discount. After
D that discount is applied, the defendant is sentenced as follows: D
E E
Charge 1, 4 months’ imprisonment;
Charge 2, 8 months’ imprisonment;
F F
Charge 3, 12 months’ imprisonment;
G Charge 4, 2 years and 2 months’ imprisonment. G
H 31. I have to take into account the totality principle. H
All 4 offences took place on the same day and in the same
I I
location but the nature of the 2 types of offences is very
different. To make all 4 sentences totally concurrent would
J J
ignore that fact. To reflect the gravity of the offences and the
K
facts, I intend to make the 4 months of Charge 1 consecutive to K
the 2 years and 2 months of Charge 4. All other sentences
L concurrent to Charge 4. L
M 32. Accordingly, the defendant is sentenced to a total of M
2 years and 6 months’ imprisonment.
N N
O O
P P
(A J Woodcock)
Q District Judge Q
R R
S S
T T
U U
CRT25/7.12.2021/NYL 7 DCCC 608/2021(1)/Sentence
V V