HKSAR v. BALI BIN KADIR

HCCC 3/2025

[2025] HKCFI 1565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 3 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Ms. Minnie Wat and was committed, on 2^nd January 2025, to the Court of First Instance for sentence. The defendant confirmed his plea and admission to the Summary of Facts before me and his conviction was duly recorded.

2.  Particulars of the charge are that the defendant on 5^th October 2023, at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, together with other persons unknown, unlawfully trafficked in a dangerous drug, namely 2,064g of tablets containing 745.7g of 3,4-methylenedioxymethamphetamine (commonly known as ecstasy).

FACTS

3.  The defendant arrived at Hong Kong from Kuala Lumpur, Malaysia on 5^th October 2023.  He was refused entry by Immigration and was referred to Customs Officers for clearance at the Customs Arrival Hall B.  Custom officer 18424 opened the defendant’s suitcase and found 5 plastic bags that looked like food items.  

4.  Upon inspection, they were found to contain the following instead:

(a)  871 grammes of tablets (estimated to contain 2359 tablets by weighing)  containing a total of 302 grammes of 3,4 methylenedioxymethamphetamine (exhibit E1);

(b)  540 grammes of tablets (estimated to contain 1464 tablets by weighing)  containing a total of 211 grammes of 3,4-methylenedioxymethamphetamine (E2);

(c)  227 grammes of tablets (estimated to contain 617 tablets by weighing)  containing a total of 78.6 grammes 3,4-methylenedioxy-methamphetamine (E3);

(d)  224 grammes of tablets (estimated to contain 610 tablets by weighing)  containing a total of 77.5 grammes of 3,4 methylenedioxy-methamphetamine (E4); and

(e)  202 grammes of tablets (estimated to contain 549 tablets by weighing)  containing a total of 76.6 grammes of 3,4 methylenedioxy-methamphetamine (E5);

5.  E1 to E5 together constitute the subject dangerous drugs of the charge.

6.  The defendant was arrested.  He would eventually claim under caution, among other things, the following.  

7.  It was his friend ‘Afat’, a 42 year-old Malaysian man, who gave the suitcase to him at the airport in Kuala Lumpur on 5^th October 2023.  The defendant then flew direct to Hong Kong.

8.  The defendant said he did not have the key for the suitcase, had not opened the suitcase and did not know what was inside.  Afat said he will fly to Hong Kong to collect it on 7^th October, and told the defendant to wait for him at the hotel in Hong Kong that Afat had arranged.  The free flight was the defendant’s reward for his effort.  

9.  The defendant had known Afat for 2 years.  They communicated through WhatsApp and Facebook Messenger, and Afat sent him the itinerary and hotel booking on WhatsApp.  The defendant claimed that Afat had told him it was just clothes and snacks in the suitcase.

10.  Despite what the defendant had claimed, by his admission to the Summary of Facts, he had accepted and admitted that, at all material times, he knowingly possessed all the dangerous drugs seized from the suitcase for the purpose of unlawful trafficking.  

11.  The total estimated street value of the drugs is HK$1,003,104.  

CRIMINAL RECORD

12.  The defendant has no criminal conviction record in Hong Kong.  

BACKGROUND AND MITIGATION

13.  The defendant was born in Malaysia in June 1974 and is 50 years old.  He was educated up to lower secondary level and had been working as a fisherman since young.  He is divorced with 2 sons and a daughter aged 18, 16 and 14 respectively, and they have been staying with the defendant’s mother and younger sister since the defendant’s detention in Hong Kong.  

14.  Mr. Y.L. Cheung, counsel for the defendant, suggested that one of the reasons that led to the commission of the offence was the fact that the defendant had never travelled out of the country since birth, which caused him to be tempted into agreeing to deliver the drugs in return for free flight, free accommodation and free meals in Hong Kong.

15.  Mr. Cheung submitted that the naïve defendant had been used as a courier to carry the drugs, that he was neither the mastermind nor a major figure in the trafficking.

SENTENCING

16.  The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is life imprisonment and a fine of $5 million.

17.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as read in conjunction with HKSAR v Lee Ming Ho [2024] HKCA 150 , and the sentencing guidelines for ecstasy in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 are applied.

18.  For 745.7g of ecstasy, the applicable tariff band is “12 to 14 years”.

ROLE AND CULPABILITY

19.  Although the defendant gave different versions of when and how he received the suitcase with the drugs inside, it is undeniable that he took an active role in bringing its contents into Hong Kong from Malaysia, a country where trafficking in dangerous drugs is punishable by death, for the reward of a free flight.  There is clearly an international element in the defendant’s commission of the offence.

20.  In Lee Ming Ho, the Court of Appeal ruled that an international element in trafficking affects the offender’s role and culpability at the starting point, rather than serving as a separate aggravating factor, except when the court decides otherwise.

21.  In the present case, the international element is considered as part of the defendant’s role and culpability.  A notional starting point higher than the arithmetical application of the tariffs will be adopted.  The significant quantity of drugs being brought into Hong Kong is an important factor that I have taken into account when deciding on the level of enhancement.

22.  For the 745.7g of ecstasy, with the defendant’s role as an international courier, I adopt a notional starting point of 14 years’ imprisonment, being about 1 year and 3 months above the arithmetical starting point of 12 years 9 months (a 9% enhancement).

AGGRAVATING FACTORS

23.  There are no other aggravating factors apart from the international element, which has already been incorporated into the starting point above.

MITIGATING FACTORS

24.  The only mitigating factor is the defendant’s timely guilty plea, for which he is granted the usual one-third discount, leading to a sentence of 112 months.

TOTALITY

25.  I have taken a step back to consider if the sentence is fair, just and balanced and have concluded that it is.

FINAL SENTENCE

26.  The defendant is sentenced to 9 years 4 months’ imprisonment after plea.