COURT: The two defendants pleaded guilty before a magistrate to one charge of conspiracy to traffic in a dangerous drug. They were committed before me for sentence.
In sentencing, I have considered the whole circumstances of the case, including the facts each defendant admitted, the type and quantity of drug involved, personal background of the defendants, and mitigation put forward on their behalf. I have also had regarded the sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The facts of the case may be summarised as follows. On 27 July 2021, in a consignment from Pakistan, which a Mr Lim collected by presenting its airway bill, Customs officers found substance suspected to be dangerous drugs. The substance was later confirmed to be liquid containing 12,236.43 grammes of ketamine.
The consignment was addressed to a logistics company called Ruida Logistics. Mr Lim said he was a driver hired by this company and instructed to collect the consignment. Mr Lim agreed to participate in a controlled delivery operation.
On the following day, having contacted a Mr Chu, arrangement was made for him to meet a Mr Lee who would collect the consignment. D1 showed up at the agreed meeting place with a boy, 14 years old. He said he was Mr Lee and his telephone number tallied with that provided to Mr Lim by Mr Chu. When D1 was to collect the consignment, officers arrested him.
Under caution, D1 admitted that he had been instructed by an unknown person to collect the consignment for a reward of $2,000. He agreed to cooperate and call the unknown person he refers to. That person told him to deliver the consignment to a place in Kwai Chung.
When D1 was on the way to that place with the officers, he received a call from D2. Agreement was made to meet at the parking space of an industrial building. Officers then disguised to be D1 and the van driver.
At the meeting place were D2, one boy and one girl. D2 told the officer that he was the recipient of the consignment. Officer then allowed D2 to check the consignment. After D2 had confirmed that the consignment was 55 cartons and said he was to call for transportation, he was arrested.
In subsequent interviews, both D1 and D2 made further statements. D1 said an unknown person offered him a job to move some goods and gave him the telephone number of Mr Lim. He was supposed to take photographs of the goods and send them to the unknown person. He was also to call GoGoVan to transport the consignment. He was to receive a reward of $2,000.
D2 said he was helping a man known as “Box” to collect the consignment. He would be reimbursed with the transportation expenses but would not receive any reward. He said the consignment contained water and he was to deliver it to a place in Tseung Kwan O.
I was told that D1 is now 17 years old. At the time of the offence, he was of the age of 14 years. He is single. He grew up in a single-parent family and had never met his father. He was raised by his mother and grandmother and had been living with them. The mother is now 39 years old and the grandmother is 65 years old. D1 received education up to Form 3.
At the time of the offence, he was neither studying nor working. He had committed an offence also related to trafficking in dangerous drugs prior to the present case for which he was on 16 September 2022, sentenced to training centre.
In mitigation, learned counsel, Mr Paulinus Lo emphasised that D1 not only pleaded guilty at the earliest opportunity, he had indicated his desire to plead well before the committal.
He said as D1 grew up in a single-parent family, he had no father figure to lead him. The lack of parental discipline and guidance was a reason for him to sway away from the right path. He also asked the court to take into account the following matters:
(1) D1 was at the time of the offence only 14 years old and he is still not an adult now;
(2) D1 cannot possibly be the mastermind of this somewhat sophisticated and massive drug trafficking operation;
(3) D1 did assist in the controlled delivery operation which led to the arrest of D2;
(4) the crushing effect of the sentence on D1; and
(5) there was no aggravating factor.
A letter written by D1 was produced. In the letter, D1 expressed deep remorse and said he had learned much in the training centre. He said he would equip and reform himself.
D2 is now 19 years old. He was at the age of 17 years at the time of the offence. He did not have any criminal conviction record before. D2’s father passed away when he was only a few months old. His mother now in her 50s works as a security guard. He has a brother and a sister, both adults.
In mitigation, learned counsel for the defence, Mr Caesar Lo emphasised that the defendant is now remorseful and pleaded guilty at the earliest opportunity. He said the defendant committed the offence as he was in need of money.
His mother was in 2015 diagnosed with cervical cancer and regular treatment is required. To ease the financial burden of the family, D2 quitted schooling after completing Form 3 and had been working part-time. However, due to the economic downturn during COVID, he had difficulty getting a job and it was in such circumstances D2 was lured into delivering of drugs for money. He was promised a reward of $1,000 for this transaction.
Mr Lo asked the court to accept that the role of D2 was no more than that of a courier. He also urged the court to accept that D2 had not recruited any of the two youngsters and that they just happen to be hanging out together at the time.
He submitted that no issue of enhancement was involved in this case. He also said that D2 declined to take part in the controlled delivery because of his genuine concern for his own safety and that of his family.
A letter written by D2 was produced. In the letter, D2 also expressed remorse and said he was sorry to have let his family down. He picked up his faith in Christianity and has a desire to reform himself and serve others in the future.
Letters from his mother and family members were also produced. It was said that D2 was a filial son, not bad in nature. The court was told that D2 had on one occasion returned a wallet with a lot of cash which a person left on the bus. And on another occasion, prevented a theft to be committed on a drunken man. A letter from a social worker confirms that D2 had been taking part in volunteer work and had served elderlies with respect and sincerity.
This is a case of conspiracy to traffic in a dangerous drug. I have had regard to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho, CACC 367/2010.
If quantity of the drug involved is known, it provides the court with ready means of identifying the appropriate starting point. Though quantity is not the only fact relevant to the assessment of gravity.
In the present case, the matter which led to the discovery of the case, involved 108.8 kilogrammes of liquid, containing 12,236.43 grammes of ketamine.
I accept that the role of both defendants were relatively low in the hierarchy of the conspiracy. Having regard to the submission of Mr Lo, that D2 was the third in line instructed to take delivery of the drugs, I am of the view that there was nothing so material as to distinguish the degree of culpability between the two defendants.
Bearing these in mind, I adopt the sentencing approach as stated earlier. Taking into account the case actually involved 12,236.43 grammes of ketamine and the surrounding circumstances as revealed in the facts, and having regard to cases such as SJ v Hii Siew Cheng [2009] 1 HKLRD 1, HKSAR v Chow Yau Ching, CACC 517/2012, HKSAR v Y [2019] HKCA 456, and HKSAR v Wong Ka Chun, CACC 52/2015, I am of the view that for a conspiracy of this scale a starting point of 23½ years is warranted.
Both defendants were not adults at the time of the offence. D1 was only of the age of 14 years at the time, while section 109A(1) of the Criminal Procedure Ordinance is not applicable, I bear in mind the spirit behind the provision and the desire in general to foster rehabilitation for young offenders.
On the other hand, the offence which D1 committed was an extremely serious one. This was not the first time D1 committed this nature of offence. From the facts, D1 admitted he knew a vehicle would be necessary and quite a number of people would be involved.
Having considered the whole circumstances, I find that it must have been in the contemplation of D1 that the illegal exercise would not be a simple one and would be of considerable scale. He saw fit to engage another minor in this serious crime and he cheated him into the task.
I cannot ignore the fact that prior to this offence, D1 had committed another drug-related offence and committed the present offence while he was on bail.
Having considered the whole of the relevant circumstances, I am persuaded that a slightly lower initial starting point of 22½ years can be adopted for D1.
D2 was 17 years old at the time of the offence. In the circumstances of the present case, having regard to relevant authorities, I find the age of D2 carries little significance in mitigation of sentence. I adopt 23½ years as an initial starting point for D2.
It was a consignment from Pakistan containing 55 cartons, containing 659 bottles of liquid, declared to be rose water. International element was involved, the question is whether the defendants were each aware of this element which calls for an enhancement of sentence. It was held in HKSAR v SK Wasim [2020] 2 HKLRD 1139, that for an international element to be an aggravating factor, it must go to the aggravation of the offence as alleged against the defendant.
From the facts which both defendants admitted, I find that they had been engaged by another person to collect the items already in Hong Kong, to be delivered to a place in Hong Kong knowing that there were dangerous drugs.
There is little material from which I can draw the inference that they were knowing parties to the importing of the drugs. I therefore do not think that the sentence for each of the defendants should be enhanced for the reason that the drug had been imported.
The facts which D1 admitted reveals that he was together with a boy aged 14 at the place he met Mr Lim. At the scene, under caution he said the boy was his schoolmate and he had asked him to assist him to move a refrigerator. During a subsequent video-recorded interview, he said the two of them studied in the same school and they knew each other for three to four years. He asked the boy for assistance to move the goods he himself had been asked to collect.
When D2 met the officers disguised as D1, he was together with one boy 15 years of age and one girl 16 years of age. Under caution, he said the two minors were his friends who accompanied him to collect the consignment.
I have considered whether the provision in section 56A of the Dangerous Drugs Ordinance is applicable and in this regard, I took into account what the Court of Appeal said in HKSAR v Ho Pak Hong [2022] 1 HKLRD 951. Despite both counsel submitted otherwise, I find that I can be sure that both defendants had engaged minors in the manner as stipulated in section 56A.
Each defendant has full knowledge that he was performing a role to traffic in a dangerous drug. The only reason that he brought along another person must be to have him involved as and when situation requires.
Despite both defendants were below the age of 18 years at the time of the offence and were themselves minors in the context of the Dangerous Drugs Ordinance, having regard to HKSAR v Ho Pak Hong, I have no doubt that section 56A is applicable to both of them. And in deciding the appropriate sentence, I shall have regard to the engaging of minor in the matter.
What I have to consider is whether or not having regard to this matter, a more severe sentence should be imposed and if so, to what extent. In my consideration, I bear in mind the relevant submissions of counsel as well as the risk of excessive enhancement and crushing effect as highlighted in Herry Jane Yusuph. In particular as both defendants are facing a very lengthy term of imprisonment without taking into account this factor.
Having considered carefully in my judgment the sentence for each defendant should be enhanced by 6 months for this matter.
In all the circumstances, taking into account the matters I have said, I adopt the following notional sentences after trial: D1, 23 years; D2, 24 years. Both defendants pleaded guilty before a magistrate, for this each of them is entitled to a one-third discount.
D1 willingly participated in the controlled delivery operation which led to the arrest of D2. In my judgment for this, he is entitled to have a further discount of 1 year.
Having considered the whole of the circumstances, including what counsel said on behalf of each defendant, in particular the young age of D1 and that D2 had a clear record, in my judgment, what I have said is the extent of discount each defendant is entitled to.
D1, I sentence you to an immediate imprisonment term of 14 years and 4 months. You are serving a sentence of detention in a training centre for another offence, pursuant to the law, such detention shall cease to have effect.
D2, I sentence you to an immediate imprisonment term of 16 years.