COURT: The accused pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
(Discussion re interpretation)
It is alleged that on the 4th day of July 2019, at ground floor of Chungking Mansions in Tsim Sha Tsui, together with Chong Kok-wah, he unlawfully trafficked in 3,486 grammes of a mixture containing 2,813 grammes of heroin hydrochloride.
According to the Summary of Facts to which he admitted, at around 11.50 am on that day, the police saw him and the co-accused, another Malaysian male Mr Chong, entering the front entrance of Chungking Mansion. They waited at around the area of the ground-floor lift lobby of Chungking Mansions.
The accused collected a parcel from a FedEx courier and he took that parcel away. He was intercepted outside shop No. 75 and the other co-accused was intercepted by police outside shop No. 56. The accused was carrying the parcel in his hands at the time of interception.
Upon search, the parcel was found to contain a water purifier with a metal box concealed inside. There were 10 blocks of suspected dangerous drugs inside the metal box with plastic wrapping with the marking of a brand and the words of “100% purity”. Subsequent examination of those 10 blocks confirmed that they contained the drug specified in the charge.
The estimated street value of the drugs was HK$3,865,974.
Upon his arrest, the accused stated under caution that the heroin belonged to Ken. He helped Ken to collect the parcel and to bring the heroin upstairs to a guesthouse. He also said Ken was his friend who came to Hong Kong with him and that Ken was at the ground floor of Chungking Mansion.
The key to Room E22 of a guesthouse in Chungking Mansions was found on his person. The room was searched with a screwdriver and a cutter found.
Inquiries reveal that the accused and his co-accused arrived in Hong Kong by air on 30 June that year at about the same time. The guesthouse staff also confirmed that a room was reserved under his name through online platform for the period from 30 June to 5 July. Another room was also reserved in the name of his co-accused from 30 June to 4 July. Also the two of them checked in at the guesthouse together on 30 June.
In the subsequent video-recorded interview, he stated that his friend, Ken, was the co-accused. He said that one day earlier in Kuala Lumpur of Malaysia, he was asked by a friend, David, whether he and the co-accused were in need of money. David asked them to come to Hong Kong to collect a parcel that David would deliver to Hong Kong. David told them that there was a water purifier with concealed dangerous drug inside the parcel. He and the co-accused agreed to take the job because they were in need of money.
His role was to collect the parcel which was delivered from Malaysia and to bring it back to Room E22 of the guesthouse in Chungking Mansion. His co-accused would then take out the concealed dangerous drug. After unloading the concealed drug, they would contact David and leave the key card behind for David. They would go back to Malaysia afterwards. He was promised a reward of 3,000 Malaysian currency.
The accused stated that he arrived into Hong Kong on 30 June from Malaysia together with his co-accused. David paid him 3,000 Malaysian currency for the air tickets and for accommodation. He had also provided his Hong Kong contact number to David so that the delivery company can contact him for delivery, and he was intercepted after collection of the parcel.
Now, the accused admits and accepts that at the material times, he together with the co-accused knowingly came to Hong Kong from Malaysia with the purpose to collect a parcel concealing dangerous drug. He also admits that he was knowingly in possession of all the dangerous drug for the purpose of unlawful trafficking.
The accused is now 39 years of age with a clear record. According to the mitigation advanced by defence counsel, Mr James Tze, he was born and lived in Malaysia with his elderly mother. He was brought up in a single family.
Before his arrest, he worked as a professional photographer with a monthly income of 3,000 Malaysian dollars. Counsel said he committed the offence because he was in need of money and being influenced by bad influence. And it was pointed out on his behalf that his role was not the owner of the drugs or the mastermind of the syndicate. Four letters respectively written by the accused, his mother, his employer and a friend were also submitted for mitigation to plead for leniency.
In sentencing, I have considered the whole circumstances of the case, including the type and the quantity of the drugs involved, the background of the accused and the mitigation advanced on his behalf. I shall follow the approach enunciated by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290.
Trafficking in dangerous drug is an extremely serious offence. Given the grievousness of the offence, meaningful mitigation apart from a guilty plea is rarely available. The reasons for a person’s involvement in the offence and his personal circumstances have little weight in sentencing unless they are exceptional.
According to the sentencing guideline for trafficking in large quantity of heroin as set out in the case of HKSAR v Abdallah [2009] 2 HKLRD 437, on a pure arithmetic approach, a starting point of 24 years 8 months’ imprisonment would be appropriate. The arithmetic approach is suitable for the courier or storekeeper who are recognised to be at the lowest rank in the trafficking hierarchy.
In the present case, the accused and his co-accused came specifically to Hong Kong to aid and abet in the importation of a large consignment of heroin. After collection of the drugs, he would unload the…… or they would unload the drug from the water purifier and store it in the room of the guesthouse for further handling by the syndicate. On the other hand, I accept that he was not the owner of the drug and he was not the mastermind of the syndicate.
Taking into account the facts and all the circumstances, I adopt 24 years and 9 months as the starting point for sentence.
In this case, the international element is involved. In the case of HKSAR v Ali Qasim [2020] HKCA 56, the Court of Appeal said that there is a tangible distinction between a person who arrives at Hong Kong with dangerous drugs secreted within his baggage or person and a defendant who, on somebody else’s instruction, collects a parcel posted from abroad which he knows contains dangerous drugs. The conduct of the latter is described by the Court of Appeal as facilitating the importation into Hong Kong of dangerous drugs, and the extent of an enhancement of sentence should be different from that of a person who brought dangerous drugs to Hong Kong.
Applying these considerations to the present case, I will enhance the sentence by that of 1 year. Therefore, the notional starting point after trial should be 25 years and 9 months’ imprisonment.
(Discussion re interpretation)