COURT: Wu Zhihao, you confirmed your plea to one count of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134 and admitted the Summary of Facts.
The particulars of the charge are that on 21st day of December 2021, at Flat 1606, 16th Floor, Lam Chuen House (Block 12), Shui Chuen O Estate, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1,049 grammes of a mixture containing 847 grammes of heroin hydrochloride.
The Admitted Facts
The facts admitted are that in the evening on 21 December 2021 at the Inbound Cargo Examination Building, Shenzhen Bay Control Point in Hong Kong, a ‘UPS’ lorry was selected for customs examination. Upon check in the cargo compartment, an inbound ‘UPS’ parcel sent from Malaysia to the accused as the consignee with a Hong Kong address and phone contact was found. The parcel contents were described as “laminator”.
The officer opened the parcel and found therein a laminator, 2 paper cutters, 3 plastic boards with frames in bubble wrappings. Upon cutting the surface of each of the 3 plastic boards slightly, some white powder substances were found concealed inside. Preliminary a narcotic test on the white powder substance yielded a positive reaction to heroin.
A controlled delivery operation was mounted at around 1240 hours on the same day. A C&E officer disguised as a UPS courier called the consignee’s contact number. A male answering the phone claimed to be the consignee, Wu Zhihao and thus confirmed the delivery address to be correct. The disguising officer then said the parcel would be delivered by 1600 hours and the male replied he would be at home then.
At 1440 hours, the disguising officer arrived outside the flat as particularized in the charge and rang the doorbell. The accused answered the door. When the officer indicated there was a ‘UPS’ parcel sent from Malaysia to Wu Zhihao, the accused confirmed he was the consignee. Upon request, the accused produced his HKID card for verification. The accused was then asked to check the consignee’s name and address and he affirmed in affirmative. The parcel was handed over to the accused, who signed on the delivery record for acknowledgement of receipt.
The officer then revealed his customs officer identity. The accused was then arrested and cautioned, he said the parcel belonged to ‘Wai Shui’ who asked the accused to collect. After collecting the parcel, the accused would give Wai Shui a call for arranging other person to take the parcel away, he would receive $8,000 as reward. He knew the parcel contained some bad thing which referred to contraband, which might be dangerous drugs but he did not know which type of dangerous drugs they were.
In the written preliminary enquiry, the accused repeated some of the matters above and expressed he was not willing to participate in further controlled delivery operation.
2. mobile phones and an iPad were seized from the accused’s bedroom. Upon inspection of the accused’s iPhone, he had sent photo showing his name and address, same as those of the consignee to Wai Shui; WhatsApp exchanges between the accused and Wai Shui talking about time and arrangement of parcel delivery were found. Wai Shui offered to pay HK$8,000 to the accused given the delay in parcel posting. Wai Shui repeatedly reminded the accused to delete their call or chat records.
The government chemist later examined and certified the 3 plastic boards seized and their contents were 3 boards with frames containing 1,049 grammes of a mixture containing 847 grammes of heroin hydrochloride in total. The estimated street value of the heroin seized was around HK$1.19 million.
The accused admitted at the material times he unlawfully trafficked the dangerous drug in question.
Mitigation
The accused is now aged 22, he was aged 20 at the time of the offence. He was born in Sichuan, China. He has no criminal conviction record. I was told that the accused believes his parents divorced when he was around 1 year old. He followed his mother to Hong Kong in late 2013, when he was about 12. He understands his biological father was a businessman and he has little contact with him.
The accused attended the Hong Kong Sea School between Form 1 and 4. He left school as he did not find interest in studies and wanted to live in China. He returned to Hong Kong after 6 months.
Prior to his arrest he was living with his mother and stepfather. His mother used to work in a factory in China and as a waitress in Hong Kong. She has given up her work to look after her partner full time.
Mr Boyton submitted that the accused was never idle and was dedicated in earning a living. He was employed as a cook earning $20,000 a month, he also took up part-time jobs and busking. I was told he is a talented singer and has sung on local radio station.
Mr Boyton submitted that the accused was able to save up to $400,000 and 3 months prior to his arrest, he went into a partnership with his friend. They rented a shop in Mong Kok to sell clothes. Within 2 weeks, his partner ran off with all his savings and he was left with the lease of the shop. Unable to make ends meet, friends of the accused connected him with the trafficker.
The accused is currently studying English to improve his future employment prospect whilst he is on remand in Stanley Prison. I was told the accused is an extremely pleasant and polite individual who had simply fallen on hard times and never really considered the consequences of his actions.
Mr Boyton submitted that the accused is no more than a courier or a temporary storekeeper as his role was simply to receive the parcel and pass it on.
Mr Boyton noted that the parcel originated in Malaysia and was sent to Hong Kong via the PRC. Nonetheless, Mr Boyton urged this court not to consider the international element in this case, for reason that the accused was only facilitating the importation into Hong Kong for trafficking. Upon hearing further submissions, Mr Boyton submitted that the accused did not know that the parcel was sent from abroad or at least there was no evidence that he knew.
Mitigation letters were submitted to the Court. I have read them and accept the accused is genuinely remorseful. I note the presence of his biological parents and friends in court today to support this young man.
Sentencing Principles
For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as heroin. No doubt the drug has terrible consequences for the individual, there are also serious consequences for the community.
The view of the community is reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in heroin.
The guidelines for trafficking in heroin originating in R v Lau Tak Ming were confirmed in HKSAR v Abdallah Anwar Abbas, where the Court of Appeal set down guidelines for large quantities of dangerous drugs.
The accused was trafficking 847 grammes of heroin, which falls within the band of 20 to 23 years (between 600 and 1,200 grammes). Arithmetically, the quantity involved achieves an initial starting point of somewhere between 21 years and 2 months’ imprisonment and 21 years and 3 months’ imprisonment.
Role of the Accused
I made reference to the case of HKSAR v Herry Jane Yusuph. I accept that the accused was a mere courier or a temporary storekeeper, which can be considered one of the lowest ranks.
International Element
Mr Boyton very helpfully referred me to the case of HKSAR v Ali Qasim and HKSAR v S K Wasim. Further submissions from parties were made. Having considered these judgments made by the Court of Appeal, I am of the view that despite the parcel did cross the border before it reached Hong Kong; that the accused did provide his name and address to the recruiter and there were exchanges concerning parcel delivery and the delay in parcel posting; and the fair concession made by Mr Boyton that the factual scenario in this case is more akin to those in Ali Qasim; one important matter that works to the benefit of the accused is that there was no evidence that he knew the parcel came from abroad. Mr Guan for the prosecution did not refer this Court to any evidence to the contrary. So benefit of doubt should go to the accused.
I will not, therefore, make any enhancement concerning international element.
Disposition
In view of the quantity of dangerous drug involved and the relevant guidelines, I adopt a starting point of 21 years 2 months’ imprisonment.
I am of the view that there are no other aggravating features in this case.
I have considered submissions concerning your background, your history, reasons for the offence, and your age and the rehabilitation plan. The only and strongest mitigating factor is your timely plea, for which a full one-third discount is warranted.
Therefore, having rounded off the discounted period to the nearest month, you shall be sentenced to 14 years and 1 month’s imprisonment.