COURT: The defendant pleaded guilty to the offence of trafficking in a dangerous drug and doing an act for the purpose of trafficking in a substance believed to be a dangerous drug before a magistrate on the 30 May 2024.
The 1st charge of trafficking in a dangerous drug alleged that on the 22 July 2022, at the 15th floor of Mai Wah Industrial Building at Nos.1 to 7, Wah Sing Street, Kwai Chung, he unlawfully trafficked in 2,118 grammes of cocaine narcotic.
The 2nd charge alleged that on the 8 August 2022, at the carpark loading area on B1 floor of Hoi Luen Industrial Centre, No. 55 Hoi Luen Road, Kwun Tong, together with other persons unknown, he did an act for the purpose of trafficking in a substance he believed to be a dangerous drug.
According to the Summary of Facts to which he agreed, at 3.25 pm on 22 July 2022, the Customs officers saw him walking into Mai Wah Industrial Building, Nos. 1-7, Wah Sing Street, Kwai Chung. He was carrying a heavy package and he appeared to be nervous. A FedEX courier, Mr Chan, also went to the Mai Wah Industrial Building that afternoon to pick up a package for delivery. He collected a package from the defendant at the 15th floor lobby of the building at 4.10 pm. The defendant told Mr Chan that the package contained ceramics. He also provided Mr Chan with the airway bill for the package and an invoice for shipment of snack bowls to Australia by ‘Jumbo Trading Limited’ with the address of Room A, 15th floor of Mai Wah Industrial Building.
X-ray of the package revealed unusual contents and a report was made to the Customs and Excise. Upon examination, the package was found to contain 11 boxes of ceramic bowls, and three boxes which were found to contain a total of 2,981 grammes of a solid containing 2,118 grammes of cocaine which is the subject of Charge 1. The estimated street value of the cocaine was around $3,055,525.
The CCTV recording of the 15th floor of Mai Wah Industrial Building revealed that the defendant had entered Room 101, Flat A, on 15th floor of the building earlier in that afternoon with some documents in his hand. At 3.28 pm, he returned to Room 101 with a package. About 20 minutes later, he left Room 101 with a package and waited at the 15th floor lobby. He returned to Room 101 after giving the package to the FedEX courier Mr Chan at 4.10 pm.
Investigation revealed that on 20 July 2022, someone with telephone number 97698354 asked to rent Room 101 on 22 July 2022, and the daily rental of $500 was settled by ATM cash deposit.
In respect of Charge 2, at about 1.05 pm on 8 August 2022, Customs officers intercepted the defendant at the carpark loading area on B1 floor of Hoi Luen Industrial Centre, Hoi Yuen Street, Kwun Tong as he was carrying a white plastic box into the life lobby. Upon search, a total of 3.953 kilogrammes of a solid containing lignocaine, a listed Part 1 Poison, was found in a hidden compartment at the bottom of the plastic box. It is the subject of Charge 2.
Upon his arrest, the defendant stated under caution that the items inside the box were drugs. He had picked it up for the boss and intended to bring the box to Room 1032, Flat 10, 10th floor, Block B of Hoi Luen Industrial Building. He would wait for the instruction from the boss on how to deal with the box. He had done similar jobs before, most recently at Mai Wah Industrial Building in Kwai Chung.
At the time of his arrest, the defendant had cash of $240 and a mobile phone on his person.
The CCTV recording of the carpark of Hoi Luen Industrial Building revealed that the defendant and another male went to the building carpark at 1.03 pm on that day. The male went into the lift lobby while the defendant collected the white plastic box from a light goods vehicle driver. The male fled the building when the defendant was intercepted by the Customs officers.
Investigation revealed that on 5 August 2022, the defendant asked to rent Room 1032 on 10th floor of the building from 12 to 4 pm, and he settled the rental payment on the same day. Around noon on 8 August 2022, someone with telephone number 97694015 placed a GoGoVan order for the light goods vehicle driver to collect the white plastic box in To Kwa Wan and deliver it to the defendant at the carpark of Hoi Luen Industrial Building.
The Customs officers searched the defendant’s home and found a company chop for ‘Jumbo Trading Limited’ corresponding with the company name that appeared on the invoice given by the defendant to the FedEX courier on 22 July 2022 in Charge 1. A note with the Room 101 address was also found on his mobile phone.
Examination of the defendant’s mobile phone revealed that he had WhatsApp messages with someone in the name of Kwai Bing-hung with telephone number 97698354, and also in contact with another person of telephone number 97694015 at the material times. On 22 July 2022, that other person provided the defendant with the invoice and airway bill in connection with the package in Charge 1 for printing out. That person asked the defendant to use the company chop of Jumbo. He also instructed the defendant to bring the package to the delivery man and to tell the delivery man that it was ceramic utensils.
After the package was collected by the FedEX courier Mr Chan, the defendant reported to this person and also to Kawai Bing-hung. The defendant also sent them the deposit advice for the payment of rental for Room 101 of Mai Wah Industrial Building.
Between 31 July and 5 August 2022, the defendant discussed with Kwai Bing-hung about the rental of Room 1032 of Hoi Luen Industrial Building. The defendant also sent the rental receipt for Room 1032 to Kwai. On 8 August 2022, the person with telephone number 97694015 instructed the defendant to pick up a package from a driver at Hoi Luen Industrial Building.
The defendant now admits that he, together with other persons unknown, unlawfully trafficked in the dangerous drug in Charge 1 on 22 July 2022; and together with other persons unknown, he did an act for the purpose of trafficking in a substance he believed to be a dangerous drug on 8 August 2022.
The defendant was 18 years of age at the time of both offences. He is now aged 21. He studied up to Form 2 and he is single. He was unemployed before the arrest, and he used to live with his mother and elder brother. Despite his young age, the defendant has a total of three criminal convictions. In August 2018, at the age of 14, he was convicted of one charge of theft, and he was sentenced to the reformatory school. Seven months later, in March 2019, he was convicted of one charge of wounding with intent and one charge of criminal damage. He was again sentenced to the reformatory school and a compensation order of $1,660. At that time he was only 15 years.
In mitigation, counsel Ms Vivien Chan informed this court that his parents divorced when he was in primary school. Counsel said that after he was discharged from the reformatory school in 2020, he worked in 7-Eleven until he underwent an operation to remove fractured bones of his second right toe in middle of 2021. He could not stand to work long hours afterwards and became unemployed.
Counsel said that he committed the offences out of greed and foolishness with a view to earn quick money. Counsel submitted that he should be considered as being in the lowest rank in the hierarchy of trafficking because he was just a foot soldier who helped in the delivery of the packages in accordance with instructions. Counsel said he did not even know what kind of drug he was handling.
Counsel urged this court to take into account his remorse, cooperation with the police and early plea of guilty so that he can be given a lenient sentence and he can reunite with his family sooner.
Counsel rightly accepted that his personal circumstances count for very little in the sentencing of drug trafficking. She urged for the two counts be run mostly concurrently taking into account the totality principle.
The defendant himself had also written a letter to this court. He said that he could not make money to support his living since after the foot surgery and he committed the offences out of greed and stupidity.
In sentencing the defendant, I will follow the approach laid out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and the principles enunciated in the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
Charge 1 involved a substantial quantity of cocaine, namely 2,118 grammes of cocaine narcotic with an estimated street value of over 3 million. According to the guideline case of
HKSAR v Abdallah[2009] 2 HKLRD 437, the guideline starting point for trafficking in 1,200 to 1,400 grammes of cocaine would be 23 to 26 years’ imprisonment. On an arithmetic calculation, the appropriate starting point for trafficking in 2,118 grammes of cocaine narcotic would be 24 years’ imprisonment.
In respect of the role and culpability of the defendant, I do not accept that he was simply a courier who helped in the delivery of packages. According to the Summary of Facts, as early as 11 July 2022, a note with the Room 101 address was found on his mobile phone. Even though the room was arranged to be rented by Kwai Bing-hung on 20 July, the rental was paid by the defendant by ATM cash deposit.
In Charge 2, he was engaged in the discussion about the renting of Room 1032 with Kwai Bing-hung since 31 July, 8 days before the offence. He was the one who rented the Room on 5 August 2022 and again he paid for the rental. The whole operation was pre-meditated with certain degree of complication.
In respect of Charge 1, he possessed the company chop of ‘Jumbo’ which was used in preparing the hard copy of the commercial invoice, and he stuck the airway bill onto the package before it was collected by the FedEX courier. He was also responsible to bring the package to Mai Wah Industrial Building for collection by the courier. He was the one who dealt with and spoke to the courier. His conduct in dealing with the documentation of the exportation and dealing with the FedEX courier obviously showed that he was knowingly aiding and abetting somebody else’s act of exporting the drug to Australia. The exportation would have been successful but for the suspicion of the FedEX staff about the contents of the package.
As Zervos JA acknowledged in the case of HKSAR v Fong Yau Heung [2022] 2 HKLRD 99,
“… the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong. Exporting drugs from Hong Kong has the same effect on the receiving jurisdiction which is regarded with the same level of seriousness as if imported in accordance with international comity.”
That said, I do bear in mind the caution made by the Court of Appeal in the case of HKSAR v Ali Qasim CACC 332/2018. I am fully alerted to the fact that even though his conduct facilitated the bringing of the drug to Australia to a certain extent, he was far less culpable than an offender such as one who carry the drug across the border himself or the actual organiser of the exportation.
I should point out that in the case of Lee Ming Ho, the Court of Appeal made clear that the international element should be considered as a factor when assessing the role and culpability of the offender in order to identify the appropriate starting point for sentence, and the sentencing judge should avoid double-counting the factors in considering the appropriate sentence.
Taking into the account the extent of his involvement in renting the premises and also his conduct about aiding and abetting the exportation as mentioned above, his role and culpability are plainly more serious than those of a simple courier. Applying the approach set out in Herry Jane Yusuph, I consider the appropriate notional sentence after trial should be 24½ years’ imprisonment.
For sentencing purpose, I would ignore his criminal record which are not similar in nature.
The only mitigating factor is that he pleaded guilty at the earliest opportunity and is entitled to the full one-third discount. After the discount, his sentence is reduced to that of 16 years and 4 months. So I will sentence him to 16 years and 4 months’ imprisonment for Charge 1.
Charge 2 involved 3.953 kilogrammes of a solid containing lignocaine, a listed Part 1 Poison. The defendant stated under caution that he knew the items inside the plastic box were drugs.
In sentencing for the offence of doing an act for the purpose of trafficking in a substance believed to be a dangerous drug, I would follow the approach set out in the case of HKSAR v Cheng Ling Ling [2019] 3 HKLRD 797. In that case, the court said the sentencing court should look at the sentence which would have been imposed for trafficking in the drug that the offender believed he was trafficking, and accord a reduction in recognition of the fact that the physical element of the offence brought with it little or no harm. This is called the ‘no harm’ factor. The discount that should be given for the ‘no harm’ factor will vary, much depend upon the particular facts and circumstances of the case.
In the present case, there is no direct evidence to show what type of dangerous drug the defendant believed the plastic box contained. But he stated under caution that he had done similar jobs before including at Mai Wah Industrial Building, and no doubt with the same group of persons. In the circumstances, I consider that it would be sensible and reasonable to assume that he believed he was trafficking in cocaine, the same kind of drug as Charge 1.
In Charge 1, the purity of the cocaine narcotic was 71 per cent. I would apply the same purity of 71 per cent to the substance in Charge 2 in determining the narcotic content. The quantity of Part 1 Poison was 3,953 grammes. Applying the same 71 per cent ratio, the quantity of the narcotic would be 2,806 grammes which would attract, according to the sentencing guideline for cocaine, an arithmetic starting point of 24 years and 8 months’ imprisonment.
Regarding the role and the culpability of the defendant, he was actively involved in the renting of Room 1032 since days before the actual collection of the package. However his conduct was not as culpable as that he had done in Charge 1, and also there is no international element.
So, taking into account his role and culpability in Charge 2, I consider the notional starting point should be one of 24 years and 9 months’ imprisonment. After a one-third discount for his guilty plea, the resultant sentence is 16½ years’ imprisonment.
Now, coming to the ‘no harm’ factor. Taking into account the fact that the substance was Part 1 Poison, I will further reduce the sentence to one of 11½ years’ imprisonment. So in respect of Charge 2 he is sentenced to 11½ years’ imprisonment.
In assessing the overall sentence for both charges, I take into account that Charge 2 was a separate and distinct offence committed 17 days later.On the other hand, the defendant is already facing a lengthy sentence in respect of Charge 1. Having regarded his overall criminality and the principle of totality, I consider that it would be fair, just and balanced to order 5 months of the sentence in Charge 2 to be served consecutively to the sentence in Charge 1.
So the ultimate sentence for both charges is a total of 16 years and 9 months’ imprisonment.