COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug which was contained in a parcel posted from Germany, and one charge of possession of dangerous drug which was found at his home. He was committed before me for sentence.
This case originally involved the defendant and another defendant, D2. As the proceedings progressed there were developments and with consent of the parties, D2 had been sentenced on 16 May 2025. In sentencing, I have considered the whole of the circumstances, including the facts the defendant admitted, the type and quantity of drug involved, personal background of the defendant and mitigation put forward on his behalf.
I also have regard to the tariff case as well as the following two cases in which the Court of Appeal set out principles and approach of sentence consideration: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case may be summarised as follows: On 11 February 2019, customs officers found a suspicious parcel sent from Germany. Subsequently, it was confirmed that the parcel contained dangerous drug which was a total of 2,957 grammes of a solid containing 2,563 grammes of ketamine. The declared content of the parcel was gingerbread sample.
The delivery address was the office or address of a company called Brilliant Business Centre Limited which provided secretarial services to clients.
On 13 February 2019, a GoGoVan driver turned up to collect the parcel. He agreed to participate in a controlled delivery operation. As instructed, he drove his van with a parcel to Happy Valley. The defendant appeared and said he was the recipient of the parcel. After the defendant had received the parcel from the driver, he was arrested.
Under caution, the defendant said he was referred by a Miss Cheung from a job search page on Facebook. There was discussion between them about how he would handle the parcel and his reward. The defendant said he would wait for the other party to call him after having collected the parcel and the reward would be $5,000. When asked about his knowledge of the content, he said it was chocolate. In a subsequent interview, the defendant said receiving a parcel for $5,000 would not be something ordinary and he expected that it might be drugs.
The defendant agreed to take part in a controlled delivery operation. Nobody showed up during the controlled delivery operation.
Then the defendant was taken to his home. During house search, 3.16 grammes of cannabis in herbal form were found. At the time he arrived at his home, another person called Ah Ho was there. The defendant said he was a friend who was to play video games with him. Ah Ho later left.
There were telephone calls to the defendant. In one of the calls the caller told the defendant not to open the item and said he would send someone to take it away later.
Subsequently, the defendant attended a video-recorded interview. He said he did not tell the truth earlier and in fact it was Ah Ho who arranged him to collect the parcel and the reward would be $30,000. Someone would take the parcel from him after he had collected it.
The defendant is now 26 years old. At the time of the offence he was 19 years old. He has one spent conviction record in 2014. He was sentenced to 18 months’ probation order for the offence of assault occasioning actual bodily harm. I was told that the defendant studied up to Form 2 and worked as an assistant hair stylist.
Learned counsel for the defence, Ms Annie Lai, stressed that the defendant pleaded guilty at the earliest opportunity. She submitted that the role of the defendant was one of courier only. She said one of the reasons why the defendant committed the offence was the wish to release the financial burden of his father who was heavily indebted.
She highlighted what the defendant had done to assist the authority including the following:
(1) when his phone rang, he told the officer that the call was related to the case. With permission to answer the call he indicated to the caller that he understood the instructions;
(2) during the preliminary inquiry interview, he revealed the logistic of the arrangement and disclosed the contact number of the next contact person;
(3) he willingly took part in the controlled delivery operation and gave consent to the officer to check and use his mobile phone; and
(4) during the controlled delivery operation, he answered the calls and made conversation with the caller as instructed by officers.
Ms Lai submitted that the degree and extent of the participation of the defendant in the controlled delivery operation were substantial and proactive. Ms Lai also informed the court that when the defendant was studying Primary 4 in 2008, his parents separated as his father was having an extramarital affair. His mother then went to the mainland and operated a resort business there. His father committed suicide in 2022. The defendant had a girlfriend but they have separated. They have two daughters now aged 6 and 4 both living with their mother.
Ms Lai said the defendant is remorseful. She said his girlfriend left him because of this case. She also said the defendant was very sorry about the death of his father. He felt his father had suicidal thought when he visited him but he could do nothing to prevent it. He is determined to turn a new leaf and take responsibility as a father.
He wrote a letter in which he expressed remorse. His mother is still very supportive to the defendant and wrote a letter pleading for leniency. She said she would do her best to help the defendant turn over a new leaf.
The defence also submitted a letter from a daughter of the defendant saying she was missing her father and wish he would be home soon.
The employer of the defendant wrote a mitigation letter and said the defendant committed the offence out of character as he found him to be a righteous, helpful, and obedient man.
Ms Lai asked the court to take into account that one, when the defendant committed the offence he was only 19 years old, and two, he came from a broken family. Ms Lai also asked me to disregard the only previous conviction of the defendant which was not drug related and is spent.
Relying on HKSAR v Herry Jane Yusuph, Ms Lai submitted that the whole circumstances of the case pertaining to the defendant justify the departure from the sentencing guideline. Ms Lai also submitted that enhancement of sentence on the ground of international element was not warranted in the present case.
For the offence of trafficking in a dangerous drug, having considered submission from counsel, I see no reason in the circumstances of the present case to depart from the relevant tariff. I consider sentence on the basis that the defendant occupied the role low in the hierarchy of the trafficking syndicate.
According to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, a sentence of over 14 years should be considered if the narcotic trafficked in was more than 1,000 grammes. I also have regard to cases such as HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching, CACC 517/2012. Though the Court of Appeal in the latter two cases did not set down tariff, both cases are of weighty reference.
The drug was imported. However, there is no evidence that the defendant had any involvement in the arrangement of the importation of the drug. He received the drug from the driver after the drug had arrived in Hong Kong.
In the light of the circumstances in the present case and having regard to HKSAR v SK Wasim [2020] 2 HKLRD 1139, I accept that taking the international element into account in deciding the culpability of the defendant is not warranted. Having considered the whole of the circumstances, taking into account the quantity of the narcotic and having regard to cases as mentioned above, I adopt 19 years as the notional sentence after trial. I will come back to the possession charge later.
The defendant pleaded guilty before a magistrate and for this reason he is entitled to a one-third discount. The defendant was of the age of 19 years at the time of the offence. He was young but not very young. He committed a very serious offence and the quantity of drug involved was substantial. I find the age of the defendant carries little significance in mitigation of sentence.
The defendant was co-operative after his arrest. He participated in a controlled delivery. Although it did not yield any result, the prosecution accept that it was not because of any fault of the defendant. In my view he deserves further mitigation for this.
All in all, taking into account the above, and other information available to the court, I am persuaded to give the defendant a total discount of about 40 per cent. Having considered the whole of the circumstances, including what learned counsel said on behalf of the defendant, in my judgment 40 per cent is the extent of discount the defendant is entitled to.
For the possession charge, by itself a non-custodial sentence may be considered. However, in the light that the defendant is to serve a lengthy imprisonment term for the other charge, I am of the view that a short imprisonment term of 6 days to run wholly concurrently with the other sentence is application. The same discount has been given for this charge.
In my judgment, the ultimate sentence I am to impose is a fair, just, and balanced one in all the circumstances of the case and of the defendant.
By reasons of the matters aforesaid, for the offence of trafficking in dangerous drug, I sentence you to an immediate imprisonment term of 11 years and 5 months. For the possession charge, I sentence you to 6 days’ imprisonment. Further, I order the sentences of the two charges to run concurrently.
You are to serve a total sentence of 11 years and 5 months for the two charges.