HKSAR v. SZETO MAN HIN

HCCC 311/2023

[2025] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 311 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.  D2 pleads guilty to one count of “Attempting to traffic in a dangerous drug”, contrary to section 4(l)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 and section 159G and 159J(1)(b)  of the Crimes Ordinance, Cap. 200. 

2.  The particulars of the charge avers that D2 on the 5^th day of November, 2021, at Ground Floor, Excelsior Building, Nos. 68-76 Sha Tsui Road, Tsuen Wan, New Territories, in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 3,752 grammes of a crystalline solid containing 3,752 grammes of methamphetamine hydrochloride (commonly known as ICE).

3.  D2 pleaded guilty to the charge at Eastern Magistracy on 5 October 2023 and admitted the summary of facts.  He was therefore committed to the Court of First Instance for sentence.

Facts

4.  According to the summary of Facts, on 1 November 2021, customs officer at Customs Examination Hall, Air Mail Center, Hong Kong International Airport conducted X-ray examination and spotted suspicious images of 2 inbound parcels originating from Thailand.  Both parcels were declared to be car toys and each parcel contained a toy car.  Upon inspection, multiple tinfoil packaging were found hidden at the doors and wheels of the toy cars.  These tinfoil packaging contained a total of 3,752g of a crystalline solid containing 3,752g of methamphetamine hydrochloride (E1). 

5.  The estimated street value of E1 was HK$2,622,648. 

6.  Both parcels share the same recipient and recipient address, namely, Law Yuen-yi, Joey (“D1”, a defendant in HCCC 310/2023)  and Unit G16, Room A, 8^th Floor, Excelsior Building, 68-76 Sha Tsui Road, Tsuen Wan, Hong Kong.  This was the address of the Green Business, a company that provided mini-storage, logistics and other services. 

7.  In the morning of 5 November 2021, decoy customs officers brought the 2 parcels to the address of Green Business and instructed the receptionist of Green Business to notify them of D1’s arrival.  Around 3pm that day, D1 arrived at the reception counter of Green Business and sought to collect parcel.  Upon the receptionist’s notification, the decoy customs officers approached D1.  D1 was uncertain of the number of parcels that she was instructed to collect and sought clarification over a phone call.  After clarification, D1 indicated she was to collect both parcels.  After D1 collected both parcels, she was arrested. 

8.  D1 revealed that she was to further delivery these parcels to another person and she agreed to participate in a controlled delivery operation.  In D1’s mobile phone, there were 2 WhatsApp conversations related to the collection of these 2 parcels.  In one of the WhatsApp conversations, D1 was instructed to send photographs of these 2 parcels.  After that, D1 was instructed to call 5407 5631. 

9.  Around 3:47pm that day, the customs officer handed the 2 parcels to D1 and D1 waited on the Ground Floor lift lobby of Excelsior Building.  On the customs officer’s instruction, D1 called 5407 5631.  Then, D2 walked up to D1 and twice asked D1 whether it was these 2 parcels.  D2 was then arrested. 

10.  Under caution at scene, D2 said that he would bear all the responsibilities.  In the subsequent video-recorded interview, D2 under caution said his phone number was 5407 5631. He resided with his father in Lam Tin and he was a marble polishing worker but his monthly income was unstable and he owed the financial company around $50,000.

Personal background and Mitigations

11.  D2 is now 41 years old.  He was born in Hong Kong and he received education up to F.3 and started joining the work force by being a waiter.  According to his counsel, Mr. H.P. Chau, he started to work as a marble polisher in 2019, earning around $20,000 a month. Mr. Chau told me that D2 is the only child in the family and he has to look after his father who is in his 70s now.  His mother passed away in 2017.  He was once married in 2010 but got divorced in 2018 and they have no children.  D2 has 6 criminal records (involving 9 charges)  in Hong Kong in the past.  There are 4 records related to Possession of Dangerous Drugs between 2013 and 2021 for which he was mostly fined and sentenced once to the DATC.

12.  Mr. Chau said D2 became a drug addict since 2000.  In 2019, because of the pandemic, he lost his job and could only get some odd jobs.  He gradually ran out of his savings and he had to borrow from the finance companies which constantly urged him to repay the loan and he was in extreme financial difficulty.

13.  In late 2021, D2 was induced by one of his dubious peers to fetch some dangerous drugs in return for a reward of $50,000.  D2 went to collect the drugs and was arrested.  Mr. Chau emphasized that D2 was remorseful after he was arrested and accepted all the responsibilities and asked the court to give him the usual one-third discount in sentence.  Whilst the defence acknowledged that the trafficking activities involved international element, the role played by D2 was said to be basically a courier.  For the international element, the defence relied on the Court of Appeal remarks in HKSAR v SK Wasim [2020] 2 HKLRD 1139 and submitted that D2 was merely acting on instruction to collect the two parcels posted from aboard which he knew containing dangerous drug.  His culpability should be categorized only as “facilitating the importation into Hong Kong” and there is no evidence that D2 was involved in the arrangement of the importation of the drug concerned.  Mr. Chau finally urged the court to be lenient on D2 by adopting a lesser enhancement in this regard.

Sentencing considerations

14.  In sentencing the D2, I have carefully considered the facts, the background and mitigations put forward and the relevant sentencing guidelines and authorities.

15.  “Drug-trafficking” is one of the most serious offences in Hong Kong.  The maximum sentence is life imprisonment and a fine of HK$5,000,000.  Those who commit this offence are expected to be severely dealt with by the court and is going to face a very long term of imprisonment.  Those who are attempting to traffic in a dangerous drug will be equally culpable as far as the sentence is concerned.

16.  In HKSAR v Herry Jane Yusuph[2021] 1 HKLRD 290, the Court of Appeal has laid down a six-step approach in sentencing drug-trafficking offence.  The 6-step approach may be summarized as follows:

Step 1 - identifying the relevant guideline band;

Step 2 - assessing the role and culpability of the defendant;

Step 3 - identifying the starting point;

Step 4 - any aggravating factors;

Step 5 - any mitigating factors; and

Step 6 - fixing an overall sentence that is fair, just and balanced.

17.  In Step 1, according to the revised guidelines laid down in the recent case of HKSAR v Huang Ruifang CACC 106/2022, the tariff for trafficking in between 1,500 and 5,000 grammes of ICE would be between 20 and 24 years.  The present case involves 3,752 grammes of ICE.  Mathematically speaking, the appropriate starting point should be 22 years and 7 months as conceded by Mr. Chau.

18.  As to the defendant’s role and culpability in Step 2, Mr. Chau submitted that, based on the evidence, D2 was only a courier who was told to collect the two parcels from D1. The Defendant should be sentenced on the basis that he is a simple courier.  

19.  Mr. Chau further acknowledged in mitigation that there should be an enhancement on the starting point to reflect the international element involved in this case as the two parcels D2 intended to collect from D1 were originated from Thailand.

20.  In HKSAR v Lee Ming Ho [2024] 1 HKLDR 1186,the Court of Appeal held that the presence of an international element in  trafficking is now a matter that goes to the role and culpability of the offender when identifying the starting point rather than being viewed as a separate and additional aggravating feature.

21.  Based on the large quantity of ICE involved and the presence of international element in this case, I would consider an enhancement of 24 months in the usual case.  However, since the role of D2 can only be seen as aiding and abetting the importation of the drug as opposed to directly carrying the drug from Thailand to Hong Kong, the level and degree as to the nature and gravity of the international element must be less serious.  Also taking into account the already lengthy imprisonment that D2 is facing, I finally decide to enhance the starting point by 11 months only to 23 years and 6 months in Step 3.  

22.  As for Step 4, although D2 has in the past 4 convictions in relation to possession of dangerous drugs, this remains to be his first conviction on drugs-trafficking and I do not consider that there is any further aggravating factor.

23.  As for Step 5, there is no other exceptional mitigation other than the timely plea by D2.  The Court would never accept any economic reason for committing crimes and the Court of Appeal had repeatedly stressed that in serious offences such as the present, family circumstances virtually play no part in mitigation.  After reducing the starting point of 23 years and 6 months by one-third, the final sentence is 15 years and 8 months of imprisonment.

24.  Step 6 is to ask the court to review the final sentence to make sure that it is just and balanced in all the circumstances.  The final sentence of 15 years and 8 months is of course harsh to D2 but in light of the seriousness of the offence he had committed and also his role and culpability, the sentence I shall impose is only just and balanced to the offence as well as to D2.

Order

25.  D2 is sentenced to 15 years and 8 months of imprisonment.