HKSAR v. WU HUIBAO

DCCC 1462/2024

[2025] HKDC 1614

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1462 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Wu pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 24 May 2024, at Customs Arrival Hall B, Passenger Terminal 1, Hong Kong International Airport, No 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 10,062.90 grammes of cannabis in herbal form.

Facts admitted by Mr Wu

2.  On 24 May 2024, at about 1716 hours, Mr Wu arrived on a flight from Bangkok.  He was carrying a grey suitcase and a black backpack when passing the “Nothing to declare” green channel at Customs Arrival Hall B of the airport. Customs officers instructed him to put the suitcase on the X-ray machine for scanning.  Suspicious X-ray images were found.

3.  Upon enquiry by Customs, Mr Wu confirmed the suitcase belonged to him. Upon search of the suitcase, Customs found therein 21 sealed packets containing suspected herbal cannabis.  Rapid narcotic test on one of the packets yielded positive result to cannabis.

4.  Customs seized the 21 packets and sent them to the Government Laboratory for analysis.  Government Chemist subsequently confirmed they contain a total of 10,062.90 grammes of cannabis in herbal form.  The estimated street value of the dangerous drug was $2,415,096.

5.  Two mobile phones and cash of $752 and RMB98.20 were seized from Mr Wu.

6.  On 24 May 2024, Mr Wu was arrested for “Trafficking in a dangerous drug”.  During a cautioned VRI conducted between 2303 hours on the same day and 0009 hours on the next day, Mr Wu stated:

(a) He lives in Shenzhen and is a construction worker;

(b) He was in need of work; his friend Ah Chan referred him to someone called Ah Lee via WeChat; Ah Lee said he could introduce some transportation work in Thailand to him; Ah Lee said Mr Wu would require a formal working visa before he could do such work;

(c) In the meantime, Ah Lee asked him to carry some “goods” from Thailand to Hong Kong in return for a remuneration of $3,000 and expenses of $1,000; he agreed to the deal;

(d) On 21 May 2024, he came to Hong Kong from Shenzhen; he met with a friend of Ah Lee in Tai Wai and received $1,000 as the trip’s expenses; he then flew to Bangkok on the same day; all the expenses including flight tickets and hotel charges were paid for by Ah Lee;

(e) He stayed for 3 nights in a hotel in Bangkok; on 24 May 2024 at about 0730 hours, a Thai male arrived outside his room, spoke in Cantonese and claimed to be ‘Ah Lee’ and gave him the Suitcase; ‘Ah Lee’ told him that the latter did not have to worry about the things inside the Suitcase and then left;

(f) He suspected the Suitcase might contain some illicit items but he still carried the Suitcase from Thailand to Hong Kong; reason was he wanted to earn quick cash of $3,000 as remuneration to pay for the medical expenses of his mother;

(g) He carried the Suitcase to the airport in Thailand and completed the baggage checking procedure;

(h) The cash of $752 seized from him was given by ‘Ah Lee’ as the trip’s expenses;

(i) He knew that trafficking in dangerous drugs would generate high monetary return; and

(j) He had a difficult life and would refrain from repeating the offence in future.

Criminal record

7.  Mr Wu has a clear record.

Antecedents

8.  Mr Wu is a Mainland resident aged 52 (51 at the time of the offence), educated to primary school level.  He worked as a decoration worker there.  He lived with his wife.  Mr Wu has a son (18).

Mitigation

9.  Mr James Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Wu.  The following is a summary of the mitigation submissions.

10.  Mr Wu has a clear record.  He pleaded guilty in a timely manner, indicating his genuine remorse and saving the court’s time.

11.  Mr Wu was born in Hubei to a rural family.  His parents passed away when he was in tender age.  Prior to his arrest, he was living in Shenzhen with his wife.  His son is staying in Hunan for taking Gaokao (nationwide examination for entrance to universities and colleges).  Mr Wu was working as a decoration worker earning around RMB6,000 Yuan a month.  He was the sole breadwinner of the family.

12.  Last year, his father-in-law passed away due to COVID complications but not before incurring substantial debt from medical bills.  His mother-in-law was also in bad health and was also incurring medical expenses.  Due to financial hardship and feeling of desperation, Mr Wu foolishly committed the present offence.  He is now deeply remorseful.

13.  There is nothing to suggest Mr Wu was more than a mere courier. Financially challenged and with limited education, Mr Wu was a typical “drug mule” who was promised a meagre remuneration for undertaking the lowest and probably riskiest part of the drug trafficking operation.

14.  Mr Wong referred to the six-step approach identified in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  In HKSAR v Lee Ming Ho [2024] 1 HKC 722, 751C-H (paras 73-74), the Court of Appeal states that the international element should now be re-evaluated in conformity with the Herry Jane Yusuph approach and Lee Ming Ho itself.  The international element should now generally be considered as a factor when assessing the role and culpability of the offender in order to identify the appropriate starting point for sentence.  In exercising their discretion, courts would still bear in mind the quantity of narcotic being introduced into Hong Kong.

15.  In HKSAR v Nguyen Thang Loi and Dang Hung Ngoc [2023] 2 HKC 298, the Court of Appeal revises the sentencing guidelines of both herbal cannabis and cannabis resin.  For both of these categories, the starting point of over 9,000 to 15,000 grammes is imprisonment for 48 to 66 months.

16.  In purely arithmetic calculation, for 10,062.90 grammes of herbal cannabis, the starting point of sentence is imprisonment for 4 years and 3.2 months.

17.  Lastly, Mr Wong asked for leniency on behalf of Mr Wu.

18.  Upon invitation by the court, Mr Wong made further submissions on the proper quantum of sentence enhancement because of “international element”, as follows.

19.  It was submitted the cases on this subject prior to Lee Ming Ho are no longer good law and should not be relied upon.

20.  Mr Wong then referred to three more recent first instance sentencing cases in which there were sentence enhancements for international element:

(a) DCCC 909/2024 (1,987g of herbal cannabis) where 3 months (18.75%) was added to a notional starting point of 16 months;

(b) HCCC 99/2024 (744g of cocaine) where 15 months (6.024%) was added to a notional starting point of 20 years 9 months; and

(c) HCCC 305/2024 (375g of cocaine) where 10 months (5.81%) was added to a notional starting point of 14 years 4 months.

21.  Mr Wong went on to submit that, in the present case when assessing the role and culpability of Mr Wu in light of the international element, the court may consider an enhancement of 3 months to reflect his role and culpability, taking into account his already substantial notional starting point and his previous good character.  This is to avoid a crushing sentence and to pass a sentence that is fair, just and balanced in all the circumstances of the offence and the offender.

22.  When asked if the fact that Mr Wu being a Mainland resident came to Hong Kong specifically to commit a serious crime might constitute an additional feature warranting a more severe sentence, Mr Wong submitted that it was already part of and ought to be subsumed under the “international element”.  Mr Wong further submitted that the court would be well advised to guard against double-counting in the sentencing exercise.

Sentence

23.  Before sentencing, I have had the benefit of going over the recent authority on “international element” in drug trafficking offences namely HKSAR v Raman Kapusamy [2024] 2 HKLRD 955.

24.  Trafficking in a dangerous drug is a serious offence.  Here, it has been made more serious by two features.  One, the importation of the drug to fuel the local drug market (see Lee Ming Ho para 74).  Two, Mr Wu being a Mainland resident came to Hong Kong then to Thailand before returning to Hong Kong specifically for the purpose of committing a serious crime here.

25.  For both of these features, however one may label them in the grander scheme of the Herry Jane Yusuph six-step approach, enhancement of the notional sentence after trial is a must.

26.  I will adopt the initial starting point of 4 years and 3 months[1] as suggested by Mr Wong.  For both of the identified features, the starting point is raised by 4 months to reach the notional sentence after trial of 4 years 7 months or 55 months’ imprisonment.

27.  Mr Wu pleaded guilty in good time earning for himself the full 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.  A clear record in Hong Kong, especially for someone who doesn’t spend much time here, counts for little in this type of serious offence.

28.  As the final step in the six-step approach, I pause to examine if the resulting sentence is a fair, just and balanced one in light of the overall circumstances of the offence and the offender.  After consideration, I am satisfied that it is.

(Mr Wu, please stand)

29.  The sentence for Mr Wu is 36 months and 20 days’ imprisonment.