COURT: The defendant pleaded guilty to a charge of attempting to traffic in a dangerous drug before a magistrate on 22 April this year. It is alleged that on the 15th day of November 2022, at the ground floor of Wah Wing Industrial Building on Wing Yip Street in Kwai Chung, he attempted to unlawfully traffic in 13.721 kilogrammes of a mixture containing 11.627 kilogrammes of heroin hydrochloride.
According to the Summary of Facts to which he agreed at the time of the plea, on 14 November 2022 customs officers examined a consignment originated from Vietnam which claimed to be dry food and was addressed to a person called “Yan Kai Man” with the address of a workshop on Wah Wing Yip Street in Kwai Chung and a telephone number 98805743.
Upon examination, the customs officers found multiple carton boxes of food items including four cartons which contained 39 boxes of concealed heroin as particularised in the particulars of the offence. The total estimated value of the drug seized is HK$11,896,107.
On that particular day, staff of the logistics company contacted the or consignee number 98805743 via WhatsApp to confirm the delivery address. A reply giving the address in Wah Wing Industrial Building of Kwai Chung and the passcode to a flat in that building was given back to the staff of the logistics company.
Then a controlled delivery was conducted by the customs in the afternoon of 15 November 2022. A customs officer disguised as a delivery man and he made multiple phone calls with the consignee telephone number to confirm the delivery address. When he arrived at Wah Wing Industrial Building in the afternoon on that day, the defendant was already waiting there. He had a conversation with the customs officer in Punti dialect. He confirmed that he was the person in the name of “Yan Kai Man” and he also confirmed the telephone number 98805743 to be his number. In addition, he also confirmed the information on the delivery receipt and he signed on the receipt.
Upon his arrest by the customs officer, he stated under caution that somebody had asked him to come here to move the goods to a room on the 7th floor of the industrial building in return for a reward of $700.
At the time of his arrest, a total of two mobile phones were seized from his person. A smart card which could open the door of the particular address on the 7th floor of the building was also found on him.
In one of his mobile phones, the customs officers found that the SIM card was the SIM card for the number of 98805743, and it contained messages with the staff of the logistics company as mentioned earlier.
In the other phone, the customs officers found multiple WhatsApp messages in Vietnamese with an Australian telephone number saved under the name of Em Nguoi Yeu (“ENY”) between 10 and 15 November 2022, and the defendant appeared to be following this ENY’s instruction in collecting the goods. This phone also contained a photograph about the consignment and the concealed dangerous drug.
In a video-recorded interview conducted afterwards, the defendant stated that he knew that there was dangerous drug inside. He said he was a Form 8 recognisance holder and sometimes he would take up the job carrying heavy goods. He did not know a person in the name of “Yan Kai Man”, and the consignee telephone number belonged to him. He said ENY had told him about a job which involved moving some Vietnamese goods from a wooden box and placing it at the address in the industrial building and he agreed to do so.
The defendant now accepts and admits that at the material times, he had attempted to possess 13.721 kilogrammes of a mixture containing 11.627 kilogrammes of heroin hydrochloride for the purpose of unlawful trafficking.
The defendant is now 34 years of age. He is a Vietnamese who sneaked into Hong Kong in October 2014. He was educated up to high school level in Vietnam.
In his mitigation, defence counsel Mr Stephen Wong informed this court that indeed after the defendant had sneaked into Hong Kong, he became a Form 8 holder but he had never made any torture claim or non-refoulement claim. In May 2019, the Immigration Department intended to repatriate him back to Vietnam and then he did not renew his recognisance thereafter because he did not want to go back to Vietnam.
So, according to counsel’s submission, his actual immigration status now should be one of being an illegal immigrant in Hong Kong. He is not even a non-refoulement claimant because no claim has ever been made.
Counsel urged this court to take into account the fact that he is only a courier in this case, that he was asked to take delivery of the drug in return for $700. The defendant has one previous conviction for the possession of dangerous drug back on 23 May 2018 and he was sentenced to 2 months suspended for 2 years. Counsel said that the defendant is now very remorseful and he would like to be repatriated back to Vietnam as soon as possible after serving his sentence.
In respect of his role in this case, counsel said that he was only a courier and no international element was involved because he was only instructed to take delivery of the drug. Counsel rightly admitted that being a Form 8 holder or an illegal immigrant is an aggravating factor in sentencing.
In sentencing the defendant, I bear in mind the principles stated by the Court of Appeal in the cases of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The total quantity of narcotic involved in this case is 11.627 kilogrammes of heroin hydrochloride. According to the guideline case of HKSAR v Abdallah [2009] 2 HKLRD 437, the starting point for trafficking in between 4 kilogrammes and 15 kilogrammes of heroin should be one of 26 to 30 years of imprisonment. So mathematically the starting point for trafficking in 11.627 kilogrammes of heroin should be 28 years and 9 months’ imprisonment.
I bear in mind what the Court of Appeal said in the case of HKSAR v Wasim CACC 77/2019. That case involved the collection of cartons containing cannabis resin imported from India. In that case the Court of Appeal said, “For there to be an international element involved in the offence, it must be apparent from the facts alleged against the accused person.”
Coming back to the present case. There was no admission by the defendant that he knew the consignment was imported from Vietnam. There was insufficient evidence to show that he knew or he must have known the origin of the consignment, or that he was involved in the arrangement of importation of the consignment. So the case against him is simply that he collected the consignment or he collected the goods knowing that it contained dangerous drug. Therefore I take the view that the aggravating factor of international element is not made out in the present case, and I do not enhance the starting point for the reason of international element.
Taking into account the facts of the present case and all the circumstances, I am satisfied that the role of the defendant was no more than a courier, and being a courier at the bottom of the hierarchy of drug trafficking, the mathematical starting point of 28 years and 9 months should apply.
On the other hand, the fact that the defendant was a Form 8 recognisance holder or an illegal immigrant is, as rightly agreed by counsel, an aggravating feature that would warrant an enhancement of sentence. I would therefore enhance his starting point by that of 1 year, so the notional starting point after trial should be 29 years and 9 months’ imprisonment.
The defendant has pleaded guilty at an early stage and, as such, he is fully entitled to a one-third discount from the notional starting point. After the discount, he is sentenced to 19 years and 10 months’ imprisonment. So 19 years and 10 months is the sentence that I would impose on him.