COURT: Defendant, these are my reasons for sentence.
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. The particulars of the charge are that on 5 May 2023, at parking meter No. 25123B, Yip Fung Street Parking Space, Yip Fung Street, Fanling, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 29.919 kilogrammes of cannabis, in herbal form.
The facts that you have agreed are these.
At about 9.25 am on 5 May 2023, a driver of Chin Fai (HCM) Logistics Company Limited, in short “CFL”, presented a master airway bill No. 160-42950051 and collected an inbound air consignment, which was declared as jeans, in short, “the consignment”, at the Cathay Pacific Cargo Terminal, Hong Kong International Airport. The consignment was contained in 12 carton boxes and originated in Canada.
The driver of CFL then presented the consignment, ie, 12 carton boxes, for Customs clearance at the Customs Import Cargo Examination Hall. At about 9.50 am, 60 packets containing a total of 29.919 kilogrammes of cannabis in herbal form were found hidden underneath the jeans in 10 of the 12 carton boxes. Nothing suspicious was found in the other consignment.
At about 2.31 pm, a Mr Ng with mobile number 7071 1491 enquired with ACA for the update of the delivery of the consignment and confirmed that he was not the responsible person of the consignment in the stead of Mr Ho.
At about 5.11 pm, a Customs officer called and informed Mr Ng at 7071 1491 that the consignment was ready for delivery. Mr Ng was also reminded to bring a company seal for collecting the consignment. Mr Ng then instructed the consignment to be delivered to the parking space at Yip Fung Street, Fanling, and his colleague would come to collect the consignment.
At about 6.42 pm, the consignment was delivered to parking meter No. 25123B, Yip Fung Street Parking Space, Yip Fung Street, Fanling, in short, “the parking space”. The Customs officer then called and informed Mr Ng at 7071 1491 the relevant vehicle registration number.
About one minute later, the defendant showed up and stated that he was a colleague of Mr Ng. However, the defendant presented a company seal of FREE TO NIGHT STUDIO and failed to present the company seal of HKWL. The defendant then called Mr Ng to ask for details of the consignment and showed a photo, which was contained in his mobile phone, of the invoice with the airway bill number of the consignment, wrote his Hong Kong ID card number, and signed his mother’s name on the receipt to confirm the collection of the consignment.
At about 6.50 pm, the consignment was unloaded to the parking space. The defendant was observed to be wandering near the parking space, watching the consignment, making a few calls with his mobile phone, and waiting near the entrance of the car park.
At about 7.20 pm, when the defendant walked towards the parking space, he was intercepted, arrested, and brought onto a Customs vehicle. The defendant stated under verbal caution that he came to collect the consignment and another consignment for his friend, “Ah Fung”, at a reward of $15,000, and would wait for Ah Fung’s instruction. Ah Fung was introduced to him by his friend, “Ah Hong”. He did not know the names of Ah Fung and Ah Hong. He last called Ah Fung before he was arrested.
At about 7.40 pm, the defendant admitted under caution that after the collection of the consignment, Ah Fung asked the defendant to call a goods vehicle to load the consignment onto it, instructed the vehicle to go around in the vicinity for several times, and unload the consignment at the same Yip Fung Street Parking Space. Ah Fung reminded the defendant not to get on the vehicle together with the consignment. The defendant did not know how to call for a goods vehicle even though Ah Fung had taught him how. He therefore just stayed there and waited for Ah Fung’s further instruction.
At about 8.35 pm, a company seal of FREE TO NIGHT STUDIO was found on the defendant. The defendant said under caution that he picked it up from a bush next to the parking space and led the Customs officers to the location where he picked up the company seal.
At about 8.42 pm, the defendant pointed at the consignment and confirmed that he came to collect it. Upon search, two mobile phones were found on the defendant. Preliminary screening of one of the defendant’s mobile phones showed that the defendant(9717 4267) had exchanged messages with Hong(5502 2810).
On 3 May 2023, the defendant was instructed to collect the goods in the evening. A reward of $15,000 would be given to the defendant on Friday night. Someone would monitor the delivery process and the defendant would flee immediately if things went wrong.
On 5 May 2023, the defendant was provided with updated progress of the consignment and was informed at 6.09 pm of the location of the company seal. Two invoices of the consignment and other consignment were sent to the defendant. The defendant confirmed that the cartons were unloaded at the location.
Call records show that the defendant had exchanged a total of 7 calls with Ah Hong between 11.03 am to 7.07 pm on 5 May 2023, and a total of 9 calls with Ah Fung between 6.11 pm to 6.38 pm on 5 May 2023.
The prevailing estimated street value of the dangerous drugs was $6,402,666.
The defendant admitted that he unlawfully possessed the dangerous drug seized for the purpose of trafficking.
Background and Mitigation
The defendant is now 25 years old and was 22 years old at the time of the offence. He was brought up in a close-knit family. His father is retired. His mother works as a warehouse worker. He has one elder sister. He lives with his parents and is the main financial provider of the household. He has no previous convictions. The defendant left school after completing Form 3 and thereafter worked in a variety of jobs including a hair salon, as a courier in a warehouse and undertaking miscellaneous work. His most recent employment was a warehouse worker, earning a monthly salary of approximately $15,000. He was laid off shortly before the commission of the present offence.
In mitigation, counsel for the defendant submitted that the defendant had experienced a series of setbacks and circumstances that were beyond his control in the last few years. The present offence was committed at a time when the defendant felt he had run out of options. Counsel further emphasised that the defendant has expressed genuine remorse as reflected by his timely guilty plea. His girlfriend deserted him soon after his arrest. The defendant has been remanded in custody for over two years since his arrest.
During this period, he has undertaken computer courses and religious classes. Letters in mitigation from the defendant and his parents have been placed before this court.
Sentencing Considerations
I have considered the approach to sentencing those that trafficked in dangerous drugs. With the Court of Appeal’s guidelines 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 herbal cannabis and cannabis resin is set out in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329. For over 15,000 grammes, the starting point is imprisonment for 66 to 69 months. The quantity involved in the present case is 29,919 grammes of herbal cannabis. This quantity attracts a notional starting point of around 80 to 81 months’ imprisonment.
Second step, the defendant’s role and culpability
After his arrest, the defendant explained that he had come to the location to collect the consignment for his friend. He was instructed to arrange for a goods vehicle to load the consignment, to direct the vehicle to go around the vicinity several times, and thereafter to unload the consignment at the same location. He was also instructed not to travel in the vehicle with the consignment. For his involvement, the defendant was to receive a reward of $15,000. On the facts, I accept that the defendant acted as a courier, following instructions at all material times. There is no evidence to indicate that he occupied any role beyond that.
As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are for the least culpable of a drug trafficker, namely, the courier or storekeeper. As such, there is no enhancement on account of the defendant’s role. The drugs in this case were imported from outside Hong Kong. The question of an international element therefore arises. I have considered the principles governing this issue as explained in the Court of Appeal in Lee Ming Ho and HKSAR v Raman Kapusamy [2024] 2 HKLRD 955. There is no evidence that this defendant knew or must have known the origin of the consignments, nor that he was involved in arranging, causing, or facilitating the importation into Hong Kong. The evidence goes no further than that he collected the consignments knowing that they contained dangerous drugs.
As the Court of Appeal observed in Raman Kapusamy at paragraph 61:
“Whatever form the international element takes in the context of trafficking in dangerous drugs, all offenders have one thing in common: they have each either arranged, or caused or facilitated dangerous drugs to be brought over the border illegally into (or out of) Hong Kong.”
In this circumstances, although the offence involves imported drugs, I do not regard an enhancement due to the presence of an international element is made out in the present case. I therefore will not enhance the starting point on this basis.
Third step, placement within the guideline band
The quantity of 29,919 grammes places this case in a lower middle range of the 15,000 to 45,000 grammes band, considering the overall role and culpability of the defendant, I find the starting point of 80 months’ 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 the full one-third reduction. In light of his age and clear record, I am minded to reduce the sentence further by 2 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
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, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.
Defendant, you are therefore sentenced to a total of 51 months’ imprisonment for this offence.