This defendant was convicted of attempting to unlawfully traffick 8,957 grammes of a crystalline solid containing 8,907 grammes of methamphetamine hydrochloride, a drug commonly known as ‘Ice’, on 25 May 2021 in Hong Kong.
The facts of this case are relatively straightforward. There was no dispute that on the 17 May 2021, a container arrived from Thailand, and it contained a box with five picture frames. This box was examined by the Customs and Excise Department, and they found hidden inside the frames a total of nine bags of methamphetamine hydrochloride. They decided to conduct a controlled delivery operation. There was contact made with the alleged consignee to try and deliver the parcel.
The Customs delivered the parcel to a meeting place on 22 May 2021 as arranged, but no one turned up to collect it. There was a second attempt on 25 May 2021, and by that time, the consignee had purported to contact the freight forwarding company responsible for delivery, using no less than three mobile phone numbers.
On 25 May 2021, both defendants were in Tai Kok Tsui to pick up this parcel. The 1st defendant approached the undercover customs officers and collected the parcel. The 2nd defendant was nearby, but did not approach the two undercover Customs officers.
He hailed a taxi for them and took it to meet the 1st defendant as soon as he took deliver. He must have told the driver they were going to Yuen Long. Before they set off, he got out again with the driver to secure the package in the boot of the vehicle with a rope.
The 1st defendant had on his phone copies of the bill of lading related to this parcel that had been sent to him by somebody and downloaded on his phone. He showed a copy of it on his phone to the undercover courier.
The 2nd defendant had on his phone a photograph of a phone displaying the landline number of the freight forwarding company taken the day before, 24 May. The employee of the freight forwarding company, Mr Lau, confirmed in his evidence that he had, prior to the controlled delivery operation, called the alleged consignee using that landline number.
When the taxi arrived in Yuen Long and left the main road, Kam Sheung Road, and stopped, the 2nd defendant paid the taxi. The fare was over $200. Both men got out about 30 seconds apart and, rather oddly, backtracked to the main road before returning to the taxi, passing it and proceeding down a path to the 1st defendant’s home.
Although they did this one by one and not together, they must have met up on that path because they were seen entering the gate to the 1st defendant’s home together. The 2nd defendant can be seen on the taxi’s camera footage pacing up and down Kam Sheung Road before coming back or backtracking. It would appear either they were checking if they had been followed or were looking for somebody, more than likely relating to this parcel.
For some reason, they left the parcel in the boot. The taxi driver was told to wait. After they both disappeared down the path, Customs and Excise officers, probably prematurely, approached the taxi and seized the parcel. Customs and Excise officers must have then waited nearly an hour before approaching the 1st defendant’s home to see if anybody would come out or anybody would deal with the parcel.
I doubt anyone, if they had been watching nearby, would have approached the taxi because Customs and Excise officers were there within minutes of it arriving. When the Customs and Excise officers knocked on the door, it took the 1st defendant five minutes to answer it. The 2nd defendant was found in a bedroom, sat on a bed.
Both men were arrested and cautioned. Essentially, the 1st defendant said he was only helping the 2nd defendant as a favour to collect the parcel. He knew nothing about the contents of the parcel. He gave a video-recorded interview to that effect. The 2nd defendant said he was only helping the 1st defendant as a favour to collect the parcel and would be paid $500. Both men pointed the finger at each other. Neither defendant elected to give evidence.
Mitigation and Background
This defendant is now 40 years old and a holder of a Form 8 Recognizance Identification Document. He is an asylum seeker, having arrived in Hong Kong many years ago in 2015. He is not a man with a clear record. He was convicted in May 2016 of a breach of condition of stay and sentenced to 3 months’ imprisonment. In December 2017, he was convicted of taking employment whilst being a person in respect of whom a removal order or a deportation order was in force and sentenced to 13 months’ imprisonment. That removal order was issued on 21 July 2016.
I have heard from Mr Bullett that he is, although not married, a father of a daughter in Hong Kong. There is little Mr Bullett can say on behalf of the defendant in light of the fact he has been convicted after trial.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs. They equally apply to attempting to 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 six steps set out in HKSAR and Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guidance, identifying the defendant’s role, identifying where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug found. Here, there is a purity of ‘Ice’, the government chemist has confirmed, is 8,907 grammes.
The tariff for the drug ice is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point of trafficking between 4,000 and 15,000 grammes of ‘Ice’ would attract a sentence of between 26 to 30 years’ imprisonment after trial. Here, the mathematical starting point for 8,907 grammes of ice would be 27 years and 9 months’ imprisonment.
The second step of the sixth step set out by Herry Jane Yusuph is to assess the defendant’s role and culpability based upon the evidence. The drugs were imported into Hong Kong. There is not sufficient evidence the defendant was involved in the importation. I will not take that as an aggravating factor. I have assessed the defendant’s role to be equivalent of a courier.
However, there is the fact that he is a Form 8 holder and not a Hong Kong resident. He has abused the hospitality of the territory by engaging in and committing serious criminal offence of significant public concern, which is a matter going to the role and culpability of this defendant and can increase the appropriate starting point. I intend to increase that starting point of 27 years and 9 months’ imprisonment by 12 months.
Therefore, taking into account the third step, his sentence is to be determined by the relevant tariff, that is, the quantity of dangerous drugs, plus the consideration of his status here in Hong Kong. Accordingly, I find the appropriate starting point would be 28 years and 9 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any other aggravating factors or any exceptional mitigation factors. I do not find any.
The last step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, balanced circumstance, not only the offence but also the defendant. It is a significant term of imprisonment. But a severe or harsh sentence is not, by that reason alone, necessarily unfair, imbalanced or unjust.
Accordingly, for this charge, the defendant is sentenced to 28 years and 9 months’ imprisonment.