HKSAR v. EKKAWAT ATTHAPHON AND ANOTHER

HCCC 261/2025

[2026] HKCFI 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 261 OF 2025

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REASONS FOR SENTENCE

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1.  The 1st defendant pleaded guilty to one charge of “trafficking in a dangerous drug”, the 2nd defendant pleaded guilty to one charge of “trafficking in dangerous drugs”, and both defendants admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 4 August 2025. The case was then committed to the Court of First Instance for sentence. Before this court, the 1st and 2nd defendants confirmed their plea and their admission to the Summary of Facts through counsel.

2.  The particulars of Charge 1 (against the 1st defendant) state that on 17 November 2023, at the Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, the 1st defendant unlawfully trafficked in a dangerous drug, namely 7,370 grammes of a mixture containing 5,895 grammes of heroin hydrochloride.  

3.  The particulars of Charge 2 (against the 2nd defendant) state that on 17 November 2023, at the Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, the 2nd defendant unlawfully trafficked in dangerous drugs, namely 7,001 grammes of a mixture containing 5,717 grammes of heroin hydrochloride and 1.46 grammes of cannabis, in herbal form. 

4.  The Summary of Facts admitted by the defendants provide, inter alia, as follows.  At around 11.35 pm on 17 November 2023, the 1st defendant carried a black suitcase, two plastic bags and a backpack, walked through Green Channel of the Customs Arrival Hall at the Hong Kong International Airport and was intercepted by the Customs for a luggage examination. During the luggage examination, the Customs enquired with the 1st defendant and asked if the luggage belonged to him.  The 1st defendant confirmed that the luggage indeed belonged to him, which was verified by the Customs by checking the luggage tag on the suitcase.  

5.  The Customs found no contrabands in the backpack and the plastic bags.  When checking the 1st defendant’s suitcase, the Customs requested the 1st defendant to open the locked suitcase, but the 1st defendant could not open it.  The Customs opened the suitcase after numerous attempts. 

6.  The Customs found in the suitcase snacks and a carton box.  In the carton box, there are 21 blocks of the following: 

(1) one packet containing 350 grammes of a mixture, in the form of one block containing 275 grammes of heroin hydrochloride;

(2) 10 packets containing a total of 3.51 kilogrammes of a mixture, in the form of 10 blocks containing 2.79 kilogrammes of heroin hydrochloride; and

(3) 10 packets containing a total of 3.51 kilogrammes of a mixture, in the form of 10 blocks containing 2.83 kilogrammes of heroin hydrochloride.

7.  In summary, the 1st defendant had in his possession 7,370 grammes of a mixture containing 5,895 grammes of heroin hydrochloride.

8.  At around 11.41 pm on the same evening, the 2nd defendant was intercepted by the Customs at the Arrival Hall of the Hong Kong International Airport.  The 2nd defendant was then brought to the Green Channel for luggage examination.  The 2nd defendant was carrying a backpack and a blue suitcase.  

9.  In the 2nd defendant’s backpack, the Customs found, inter alia, a grinder containing 0.04 grammes of herbal cannabis, a can with 0.88 grammes of herbal cannabis, and a hand-rolled cigarette containing 0.54 grammes of herbal cannabis.  In summary, there were in total 1.46 grammes of herbal cannabis.  

10.  The Customs then asked the 2nd defendant to open the locked suitcase, which the 2nd defendant admitted to be hers, but the 2nd defendant said she had forgotten the password. As the 2nd defendant failed to open the suitcase, the Customs, with the consent of 2nd defendant, prised opened the suitcase.  The Customs found in the suitcase snacks and a carton box.  In the carton box, there were 20 blocks of the following: 

(1) one packet containing 351 grammes of a mixture, in the form of one block containing 287 grammes of heroin hydrochloride;

(2) nine packets containing 3.15 kilogrammes of a mixture, in the form of nine blocks containing 2.58 kilogrammes of heroin hydrochloride; and

(3) 10 packets containing 3.50 kilogrammes of a mixture, in the form of 10 blocks containing 2.85 kilogrammes of heroin hydrochloride.

11.  In summary, the 2nd defendant had in her possession 7,001 grammes of a mixture containing 5,717 grammes of heroin hydrochloride, and 1.46 grammes of herbal cannabis.  

12.  The 1st and 2nd defendants were then arrested by the police.  Under caution, the 1st defendant asserted that his friend Harry asked him to bring back the suitcase of drugs back to Hong Kong and would pay him $30,000.  

13.  The 2nd defendant under caution asserted that a person named “Ah Wai” treated her with a trip to Thailand and asked her to bring back the suitcase of drugs on her way back.  As for the cannabis, she had bought them in Thailand for her own consumption. 

14.  Two video-recorded interviews (VRIs) were conducted with the 1st defendant.  Under caution, the 1st defendant asserted, inter alia, as follows:  

(1) He confirmed his assertion under caution upon arrest;

(2) He is a Thai national born and raised in Hong Kong. He held a Thai passport;

(3) He knew Harry about half a year ago when drinking in Lan Kwai Fong and they kept contact through WhatsApp. On 14 November 2023, Harry called him using WhatsApp and asked him to visit Thailand to bring something back to Hong Kong. He sent his passport details to Harry and Harry booked his flight and accommodation;

(4) He departed Hong Kong at around 4.05 pm on 15 November 2023 and he met Harry’s partner named “Ah Cheung” earlier that morning in Yau Ma Tei for breakfast. During the meeting, he was told that he had to deliver drugs back to Hong Kong and a girl would be accompanying him. However, just before his departure, he was told that he would be going alone;

(5) He had only met Harry once. Harry is an Indian but spoke Punti;

(6) The flight he took to Thailand was CX701. He arrived in Bangkok at around 6 pm;

(7) His trip was booked for three days and two nights. Apart from the flight and accommodation which had been booked for him, he was paid a total of $3,000 for the trip;

(8) He was arranged to pick up a suitcase at Bangkok airport just before departing for Hong Kong. He saw two suitcases at the airport (one blue and one black). He took the black suitcase as instructed and then he checked-in the suitcase. He took a photograph of the checked-in suitcase and sent it to a WhatsApp group, of which both Harry and Ah Cheung were members. He took the flight CX702;

(9) He did not see the person who took the blue suitcase. He saw a female being intercepted by the Customs carrying a blue suitcase and he thought that the suitcase carried by the female was the same as the one he had seen at the Bangkok airport. He did not know the female. He however thought that the female was related to the girl mentioned by Ah Cheung earlier;

(10) He arrived in Hong Kong at around 10.45 pm. After he retrieved the suitcase, he was intercepted by the Customs with drugs found in the suitcase;

(11) When he was waiting to retrieve the suitcase, he received instructions to meet a middleman at the taxi stand at the airport to pass the latter the suitcase;

(12) The $30,000 reward promised by Harry had yet to be paid; and

(13) He provided his password to his mobile phone.

15.  A cautioned VRI was conducted with the 2nd defendant.  Under caution, the 2nd defendant asserted, inter alia, the following: 

(1) The Ah Wai she mentioned in her earlier cautioned statement upon arrest was a man she had met at a bar in Lan Kwai Fong, a year or two ago, through the introduction of a friend;

(2) She had been told by Ah Wai that he made a living by dealing in drugs and by being a fraudster;

(3) She was approached by Ah Wai a couple of months ago to visit Thailand and was told that there would be tens of thousands of dollars of reward for delivering drugs back to Hong Kong. She has yet to receive the promised reward;

(4) She was told that flight tickets and accommodation would be arranged for her and she could just tour around. Someone would pass her a suitcase on her way back and she could bring the suitcase back to Hong Kong;

(5) She departed for Thailand in the afternoon on 14 November 2023 alone;

(6) When she was leaving Thailand, she was given a photograph depicting the position of the suitcase at the Bangkok airport and was instructed to take the suitcase. She only saw one suitcase. When she retrieved the suitcase, a male person came to take a photograph of her and signalled her to leave. She then took the suitcase and went on board at around 6 pm with the suitcase checked‑in;

(7) Upon her arrival in Hong Kong, while waiting to collect the suitcase, a person (not Ah Wai) called her asking for her whereabouts. The person asked her to make a call after she had collected the suitcase;

(8) Ah Wai mentioned that there would be other people on the same trip, but did not mention the number of people nor mentioned whether those people would be traveling together;

(9) The backpack she was carrying belonged to her. The cannabis found in the backpack belonged to her. She had bought the cannabis in Thailand but she could not finish it, so she brought it back to Hong Kong. She first said that she might share the cannabis with her friends but later said she would consume the cannabis herself;

(10) She provided password to her mobile phone. A WhatsApp conversation was found, inter alia, in her mobile phone, in which she asked a person called “UU”, whose phone number had a Thai country code, and asked if the suitcase would be heavy. She did not ask Ah Wai because she thought Ah Wah would lie to her; and

(11) She did not have any drug habit but she would consume cannabis occasionally.

16.  In November 2023, the average retail price of heroin was HK$810 per gramme.  The heroin seized from the 1st defendant could have been sold at street level for HK$4,774,950, whereas the drug seized from the 2nd defendant could have been sold at street level for HK$4,630,770. 

17.  The 1st and 2nd defendants admit that at the material time, they unlawfully trafficked the drugs seized from them respectively by knowingly importing the same into Hong Kong. 

18.  Regarding the personal background of the 1st defendant, he was born in February 2004.  At the time of the offence in November 2023, the 1st defendant was 19 years of age.  The 1st defendant is now 21 years old.  The 1st defendant was born in Hong Kong.  He received education in Hong Kong up to Secondary Form 3 level.  He was previously employed in the business operated by his brother-in-law and earned about $10,000-plus per month.  Although the 1st defendant holds a Thai passport, he was born and raised in Hong Kong. 

19.  I am told that the 1st defendant committed the present offence in order to repay debts incurred to pay for the medical expenses of his father.  

20.  The 1st defendant has a clear record.  

21.  Regarding the personal background of the 2nd defendant, the 2nd defendant was born in Hong Kong in December 2004 and is now 20 years old.  She is single.  She lived with her parents in a public housing estate in Tsing Yi before her arrest.  The 2nd defendant was educated up to secondary school level in Hong Kong.  She was unemployed at the time of her arrest. 

22.  The 2nd defendant has a clear record in Hong Kong. 

23.  When the 2nd defendant was arrested, she had completed Year 2 of the three-year Diploma of Vocational Education (Business Event and Marketing) course with the VTC.  

24.  I am told by the 2nd defendant in a mitigation letter handed up to the court this morning that at around the time of the offence, she had been acquainted with some so-called friends and as a result she got into the habit of taking drugs, and she committed the offence for money.  

25.  The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider the aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”.  

26.  I shall deal first with the sentence of the 1st defendant on Charge 1.  

27.  Regarding the first step, for 5,895 grammes of heroin hydrochloride, the applicable guideline tariff band is that of 24 to 27 years’ imprisonment: see HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138, at paragraph 62.  

28.  Second, concerning the 1st defendant’s role and culpability, I accept that the 1st defendant was a courier, in that he brought the drugs from Bangkok, Thailand to Hong Kong.  However this case clearly involves an international element.  This is an important factor when assessing the role and culpability of the defendant in order to identify the appropriate starting point for sentence.  I have to bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes great harm to the community: see HKSAR v Lee Ming Ho, supra, at paragraph 74. 

29.  Third, for 5,895 grammes of heroin hydrochloride, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 24 years and 3.2 months’ imprisonment.  For the international element of this case as held above, I would increase the “notional sentence after trial” by 15 months, taking it to 25 years and 6.2 months’ imprisonment.  

30.  Fourth, I consider that there is no aggravating factor which would enhance the “notional sentence after trial”. 

31.  Fifth, as a matter of discretion, I would afford the 1st defendant a discount of 3 months for his participation in Father Wotherspoon’s programme.  This would take the “notional sentence after trial” down to 25 years and 3.2 months’ imprisonment.

32.  As submitted by the 1st defendant, the defendant’s principal mitigation is his timely plea, for which I will give him a full one-third discount.  Accordingly, the 1st defendant’s sentence is reduced to 16 years and 10 months’ imprisonment.  

33.  Finally, I consider that a sentence of 16 years and 10 months’ imprisonment on Charge 1 is a fair, just and balanced sentence in all the circumstances of this case and the circumstances of the 1st defendant.  

34.  I now turn to the sentence of the 2nd defendant on Charge 2. 

35.  Regarding the first step, I shall not take into account the very small quantity of 1.46 grammes of herbal cannabis found in her backpack for the purpose of working out the starting point: see HKSAR v Yip Wai Yin [2004] 3 HKC 367, at paragraph 9(4).  For 5,717 grammes of heroin hydrochloride, the applicable guideline tariff band is that of 24 to 27 years’ imprisonment: see HKSAR v Huang Ruifang (No. 3), supra, at paragraph 62. 

36.  Second, concerning the 2nd defendant’s role and culpability, I also accept that the 2nd defendant was a courier, bringing the drugs from Bangkok, Thailand to Hong Kong.  Like the case of Charge 1, Charge 2 also involves an international element.  

37.  Third, for 5,717 grammes of heroin hydrochloride, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 24 years and 2.6 months’ imprisonment.  For the international element of this case as held above, I would also increase the “notional sentence after trial” by 15 months, taking it to 25 years and 5.6 months’ imprisonment.  

38.  Fourth, I consider that there is no aggravating factor which would enhance the “notional sentence after trial”.  

39.  Fifth, as in the case of the 1st defendant, I would afford the 2nd defendant a discount of 3 months for her participation in Father Wotherspoon’s programme. This would take the “notional sentence after trial” down to 25 years and 2.6 months’ imprisonment. 

40.  I consider that the only other mitigating factor which would reduce the 2nd defendant’s sentence is her timely plea, for which I will give her a full one-third discount.  Accordingly, the 2nd defendant’s sentence is reduced to 16 years and 9 months’ imprisonment. 

41.  Finally, I consider that the sentence of 16 years and 9 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and the circumstances of the 2nd defendant.