COURT: The defendant was committed to the Court of First Instance for trial in respect of one charge of trafficking in dangerous drugs. The particulars of offence states that on the 5th day of December 2023, at the Customs Arrival Hall in Hong Kong International Airport, he unlawfully trafficked in 3,372.3 grammes of cannabis resin and 165 grammes of a solid containing 58.4 grammes of cocaine. He pleaded guilty to that charge before me this morning.
According to the Summary of Facts that he admitted, on 5 December 2023 the defendant arrived in Hong Kong from Delhi, India by flight, and he was refused landing by the Immigration Department.
Upon customs clearance, he was found to carry a red backpack and a purple check-in suitcase. X-ray check revealed suspicious image on his check-in suitcase and further examination was conducted by the Customs officers. He took out a key from the red backpack and used the key to open the suitcase. It was discovered that there was a false compartment at the bottom of the suitcase, and upon search a total of six packets containing 3,372.3 grammes of cannabis resin, and one packet containing 165 grammes of a solid containing 58.4 grammes of cocaine were found. He was arrested, and cash of HK$3,640 was also seized from his person.
The defendant stated under caution in a video-recorded interview that he worked as a fruit seller with monthly income of around 10,000 to 15,000 rupees. The trip to Hong Kong was arranged by a person called Nadeem who met him on 4 December 2023. Nadeem made arrangement for everything including the air ticket, hotel booking, the suitcase and traveling expenses.
He agreed to bring the luggage to Hong Kong for Nadeem out of greed for the free trip to Hong Kong. He came to Hong Kong alone and planned to stay for two to three days. He was told to give the suitcase to a male later, and he said that the padlock and the keys of the suitcase were given to him by Nadeem to lock the suitcase. As for the clothes inside, both Nadeem and him put their clothes into the suitcase.
When asked about the photographs of his boarding pass, luggage receipt, and his passport and some immigration documents found in his mobile phone, he said he took those photographs and sent them to Nadeem upon Nadeem’s request. He said he did not save the telephone number of Nadeem, and they communicated via WhatsApp calls only.
Upon examination of his mobile phone, it was found that he had in his mobile phone the photographs of the suitcase and also photographs of his passport and other immigration or travelling documents.
The boarding pass showed that he boarded a flight from Delhi to Hong Kong on 4 December 2023, and was scheduled to return on 7 December 2023. He was also in possession of a hotel booking under his name for a guesthouse in Chungking Mansion from 4 to 7 December 2023.
The estimated retail value of all the drugs seized from the suitcase was over HK$299,000.
The defendant now admits and accepts that he had unlawfully trafficked in all the dangerous drugs seized from the suitcase at the material time.
The defendant is an Indian male who is now 29 years of age. He was 27 years old at the time of the offence. He has no previous criminal conviction in Hong Kong. According to the antecedent statement, he was single and lived together with his mother and he also had two sisters. He worked as a salesman earning about 10,000 rupees a month, that is equivalent to HK$918.
In mitigation, counsel Mr Roy Lau submitted on behalf of the defendant that he came from a very poor family in India and he had not received any formal education. Counsel said his role in this particular case was only a courier.
However, counsel rightly conceded that there is the aggravating feature of the international element, and also the fact that two different types of drugs were involved which entitle this court to enhance the starting point of the sentence.
Counsel submitted that he is a person of clear record and he came from a very poor family with limited education. He committed the offence out of greed for a free trip to Hong Kong and he is now very remorseful. Counsel urged this court to take into account the mitigating factor of his recent guilty plea. Even though the plea was taken sometime after he was committed to the Court of First Instance for trial, counsel urged this court to exercise its discretion to give him a full one-third discount.
A letter prepared in English was also submitted by counsel in mitigation. I was told that in fact this letter was originally verbally dictated by the defendant in Hindu, and it was translated into English, put into writing into English by somebody else. In this letter the defendant stated that he was the only son of the family, and that he had received no formal education. A family friend in India offered to pay him a holiday trip to Hong Kong and that was why he took up this trip with the suitcase.
It was stated in the letter that, “To my disbelief the luggage had drugs in it”. Upon clarification by counsel with the defendant this morning, he confirmed that at the material time he had knowledge of the nature and the existence of the dangerous drugs in the suitcase.
In his letter he also asked this court to exercise leniency so that he could return to his hometown earlier.
Counsel urged this court to adopt 8½ years as the overall starting point before considering the aggravating features, and he urged this court to enhance the sentence by around 6 months for the international element, and around 1 to 2 months for the multiple drugs presence. Counsel also urged this court to exercise its discretion to give the full one-third discount to the defendant.
He was committed to the Court of First Instance for trial on 31 July 2025, and he did not change his plea until 19 September 2025 which is about 1½ months after his initial plea.
However, I note from the court file that after he was committed to the Court of First Instance for trial, on 3 August and 10 August respectively, the defendant has sent a handwritten letter to this court indicating his intention to plead guilty because he did not want to waste court time and government money. Those letters were sent a few days after he was committed to the Court of First Instance for trial.
In sentencing the defendant, I bear in mind the approach set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
On the sentencing guidelines, the mathematical starting point for trafficking in 58.4 grammes of cocaine narcotic would be 8 years and 2 months’ imprisonment, and the mathematical starting point for trafficking in 3,372.3 grammes of cannabis resin would be 25 months’ imprisonment.
I take note that the total weight of narcotics involved in this case is 3,430.7 grammes in total.
To sentence the defendant on the individual approach will produce a starting point of 10 years and 3 months’ imprisonment. In order to reflect the justice of the case and to achieve a fair result, I will adopt the combined approach which involves upward adjustment from the starting point of the base drug.
In the present case, cocaine is the more serious drug in terms of its potency and sentencing tariff. So I will adopt cocaine as the base drug in my calculation. I will make the appropriate upward adjustment for the remaining quantity of cannabis resin.
In determining the upward adjustment, I will examine the overall starting point by checking the starting point for trafficking in 58.4 grammes of cocaine narcotic against the absurdity test, the conversion test and the ratio test.
According to the absurdity test, if all the drugs seized were cocaine, then the starting point would be about 22 years and 2 months’ imprisonment. If all the quantity of the drugs were cannabis resin, then the starting point would be around 25.7 months’ imprisonment.
Under the conversion test, treating all the drugs as cocaine would result in a starting point of around 8 years and 2 months’ imprisonment.
Under the ratio test, the starting point would be one of 21 years and 10 months’ imprisonment.
Bearing in mind the result of the three tests and all the circumstances of this case, I consider the appropriate initial starting point should be 8.5 years’ imprisonment.
In assessing the defendant’s role and culpability, I should take into account the fact that he was a drug mule being used in the international importation of the drugs into Hong Kong. The international element must be assessed as part of the role and culpability of the defendant, and it is a factor which makes his role and culpability more serious. For that matter, I will enhance the starting point by 1 year to 9½ years’ imprisonment.
Furthermore, two different types of dangerous drugs were found in the suitcase, namely cocaine and cannabis resin. That means the defendant had the ability to cater for a wider market and there is also the aggravating feature of the effect of the combination of the dangerous drugs on the users. In my view, this is an aggravating feature that would justify a further increase in the starting point by half a year.
So the overall starting point or the notional sentence after trial should be 10 years’ imprisonment.
The defendant was committed to the Court of First Instance for trial on 31 July this year. On that day he pleaded not guilty to the charge. He first indicated his intention to plead guilty by a handwritten letter to this court dated 3 August 2025, that means about three days after he was committed to the Court of First Instance for trial. Again, he sent another letter dated 10 August to indicate his intention to plead guilty, and this court was formally informed about his intention by counsel in September this year.
According to the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, if a defendant indicated to the court or the prosecution that he wished to plead guilty after he had been committed to the Court of First Instance for trial, but up to and until dates were fixed for his trial by the listing judge, the appropriate discount for sentence is 25 per cent. So that is the band that this defendant fits in because he indicated his intention to plead guilty after he was committed for trial but before the listing judge fixed a trial date.
However, I do take into account his early indication of guilty plea, that is about three days after he was committed. In that circumstances I consider that it would be appropriate for me to exercise my discretion to give him a discount that is higher or slightly higher than that of 25 per cent. I will give him a total discount of 30 per cent.
So after the 30 per cent discount, his sentence is reduced to that of 7 years’ imprisonment, and that is the sentence I impose on this defendant, 7 years.