COURT: Defendant, you are charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You are charged that:
“...on the 8th day of July 2023, at Room M338A, Customs Arrival Hall, Hong Kong-Macau Ferry Terminal, Sheung Wan, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 4.98 kilogrammes of a solid containing 4.17 kilogrammes of cocaine.”
The facts to which you have agreed are these. At 5.23 pm on 8 July 2023, PW1, a Customs officer, intercepted the defendant, who arrived at Hong Kong from Macau, for clearance at the Nothing To Declare Channel, Customs Arrival Hall, Hong Kong-Macau Ferry Terminal, Sheung Wan. The defendant was carrying a white plastic bag (“P1”) in his left hand and his passport and a suitcase in his right hand. He also carried a cross-body bag and a rucksack.
X-ray examination was conducted on the defendant’s personal belongings, and X-ray image of P1 was found to be abnormal. P1 was found to contain another white plastic bag which further contained four tins. Each tin was wrapped by transparent plastic wrappings. 67 packets (“P5”), 59 packets (“P8”), 59 packets (“P11”) and 66 packets (“P14”) were respectively found in the four tins. The defendant was arrested and cautioned in English. As the defendant’s reply showed that he did not understand English, a Thai interpreter was arranged for him.
Upon search, a ferry ticket from Macau to Hong Kong (5 pm on 8 July 2023), immigration landing slip, a mobile phone and a SIM card, some US currency, some Macanese pataca currency, some Thai currency, some Turkish currency, some Ethiopian currency were found in the defendant’s cross-body bag. And three boarding passes dated 30 June 2023 from BKK to BAH, 1 July 2023 from BAH to IST, and 7 July 2023 from MNL to MFM, and three sets of itineraries were found in the defendant’s rucksack.
The defendant was cautioned again and stated under verbal caution that he had no knowledge of the packets found in the four tins. Someone passed the four tins to him at the airport, but he did not have the contact details of that person. He would wait for instruction for delivery upon arrival at Hong Kong and would contact that person via WhatsApp and Line. He would receive less than THB$100,000 for the delivery. He travelled alone.
At 1.27 am on 9 July 2023, the defendant consented to participate in a controlled delivery operation in the hotel room booked online. The defendant exchanged WhatsApp and Line messages with “Wan” and “Vanet Good work”, ie Wan, respectively in the presence of Custom officers and the Thai interpreter. Wan sent text messages to the defendant and called the defendant to keep track of his status in Hong Kong. The defendant sent photos and videos of the hotel room, the bag and his selfie to Wan upon requests.
Wan said $100 would be given to the defendant and told the defendant to take videos of him going to the playground near the hotel. However, no one showed up to collect the dangerous drug. At 12.12 pm, the defendant requested to terminate the controlled delivery operation because he was concerned for his personal safety. The controlled delivery operation was terminated.
Government chemist’s certificate certified that P5, 67 packets containing a total of 1.33 kilogrammes of a solid containing 1.02 kilogrammes of cocaine; P8, 59 packets containing a total of 1.17 kilogrammes of solid containing 1.04 kilogrammes of cocaine; P11, 59 packets containing a total of 1.17 kilogrammes of a solid containing 1.01 kilogrammes of cocaine; and P14, 66 packets containing a total of 1.31 kilogrammes of a solid containing 1.10 kilogrammes of cocaine. A total of 251 packets containing a total of 4.98 kilogrammes of a solid containing a total of 4.17 kilogrammes of cocaine were seized.
Movement record showed the defendant entered into Hong Kong at 5.18 pm on 8 July 2023 at the Macau Ferry Terminal. The defendant’s WhatsApp messages exchanged with Wan showed that there was a hotel reservation record. Enquiry with the hotel showed that the hotel room was reserved online for the defendant from 8 July 2023 to 9 July 2023.
(Discussion re typo)
Line messages exchanged between the defendant and Venat Good work showed that from 26 December 2022 to 15 February 2023, they exchanged messages about suspected dangerous drugs, ie ‘Ice’, ketamine and cocaine. From January 2023 to June 2023, Wan arranged jobs for the defendant to deliver stuff to Cambodia, Laos, Taiwan and Bahrain at a reward and asked the defendant to apply for a passport. In March 2023, the defendant sent his passport particulars and vaccination certificate to Wan as per instructions.
From 1 July 2023 to 8 July 2023, the defendant sent photos of boarding passes, hotel receipts, hotel rooms and surroundings, selfie with his full outfit to Wan as instructed whenever he arrived at hotels and airports.
WhatsApp messages exchanged between the defendant and Wan showed that from 29 June 2023 to 9 July 2023, Wan constantly asked the defendant to send her photos of his location and selfie and sent different flight information and hotel reservations to the defendant.
On 7 July 2023, when the defendant arrived at Manila Airport and waited for the flight to Macau, he saw airport officers conducting baggage examination of passengers. He immediately sent Wan two photos to report the situation. He told Wan, “I am not doing this!”, “what are they checking?”, “why are they checking?”, “what should I do now?”, “why is it happening to me?”, “where should I go?”, “I can’t go anywhere”. Wan calmed him down by telling the defendant that “It should be fine because you are not in that room (the baggage examination room), it’s not about us”.
The prevailing estimated street value of the cocaine seized was HK$5,353,500.
The defendant admits and accepts that at the material time, he trafficked in dangerous drugs by knowingly importing the dangerous drugs into Hong Kong.
Background and Mitigation
The defendant is a Thai national. He is now 29 years old and was 26 years old at the time of the offence. He is single. He attained education up to secondary school level 3 in Thailand. His parents are divorced. He has one elder sister. He has no previous convictions either in Hong Kong or in Thailand.
From the age of 14, the defendant worked part-time as a bar host. He later left school and worked as a hawker during the daytime and as a bar host at night. At the age of 23, he opened his own bar in Pattaya, Thailand. As a result of COVID-19 pandemic and its adverse impact on tourism, the business was eventually forced to close.
In mitigation, counsel for the defendant submitted that following the closure of his bar, the defendant fell into financial difficulty. Counsel further submitted that the defendant did not wish to trouble his parents or cause them concern and that under the influence of an undesirable peer offering the prospect of quick money, he exercised poor and foolish judgment in committing the present offence.
Sentencing Considerations
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho, [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
First step: identifying the relevant guideline band. The relevant guideline for trafficking in cocaine is set out in the case of HKSAR v Huang Ruifang [2025] HKCA 234 which provides that trafficking in 1,500 to 5,000 grammes of cocaine attracts a starting-point range of 20 to 24 years’ imprisonment after trial.
The quantity involved in the present case is 4,170 grammes of cocaine. This quantity attracts a notional starting point of 23 years’ imprisonment.
Second step: defendant’s role and culpability. I accept that on the facts, the defendant was acting as a courier who was arrested whilst delivering the drugs. There is no evidence to indicate otherwise. As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are for the least culpable of the drug traffickers, namely, the courier or storekeeper. As such, there is no enhancement on the count of the defendant’s role.
However, the offence involved cross-border trafficking. In the recent decision of HKSAR v Lee Ming Ho [2024] HKCA 150, the Court of Appeal stated that the international element, which was formerly treated as a separate and individual aggravating factor, should now be considered as a factor when assessing the role or/and culpability of the offender in identifying the appropriate starting point for the sentence.
In the case of HKSAR v Rahman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal further held that the international element is merely a factor or circumstance in the commission of the offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.
In this regard, the fact that the defendant trafficked a large quantity of cocaine across international borders into Hong Kong, evidence also shows that the syndicate intended the defendant to deliver drugs to various other countries. Having referred to the case of HKSAR v Michalakopoulos Theodoros [2025] HKLRD 1 where the facts are slightly different from the present case, I still enhance the sentence by 6 months as a result of the circumstances in which the defendant brought the drugs across the border.
Third step: placement within the guideline band. Considering the overall role and culpability of the defendant, including the international element, I find that a starting point of 23½ years’ imprisonment is appropriate.
Fourth step: aggravating factors. I find no aggravating factors beyond those inherent in the offence itself and those already reflected in the assessment of the role and culpability.
Fifth step: mitigating factors. The defendant pleaded guilty at the earliest opportunity, for which he is entitled to a full one-third discount reduction. He has no previous criminal conviction. That brings the sentence to 15 years 8 months’ imprisonment.
Additionally, following his arrest, the defendant consented to participate in a controlled delivery operation under the supervision of officers of the Customs and Excise Department. The operation lasted for almost 11 hours. Although the operation ultimately proved unfruitful, I am of the view that this co-operation should be given some weight in mitigation.
In HKSAR v Jardin Rodela Maningas, CACC 278/2011 where the applicant assisted the customs in a controlled delivery but no recipient appeared, Stock VP (as he then was) observed at paragraph 16 that:
“It is important as a matter of principle to encourage arrested person to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant.”
Further, in the light of the case of Michalakopoulos Theodoros, for the defendant’s assistance in the controlled delivery operation and his clear record, I am minded to reduce the sentence by 18 months.
As for the personal and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug-trafficking cases.
Sixth step: totality and overall fairness. After the enhancement and deduction as stated, the sentence is 170 months’ imprisonment. I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offence and the defendant’s role and culpability, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.
Defendant, please stand up. Defendant, you are sentenced to a total of 14 years 2 months’ imprisonment for this offence.