COURT: On 7 March 2024, the defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and he was committed to the Court of First Instance for sentence. It is alleged that on the 12th day of August 2021, outside Tsing Yi Post Office in Tsing Yi, he unlawfully trafficked in a dangerous drug, namely 1,688 grammes of a liquid containing 747 grammes of cocaine.
According to the Summary of Facts which he admitted at the time of his guilty plea before the magistrate, on 2 August 2021 a Customs and Excise officer examined a postal parcel and found it contained six bottles of red liquid which upon examination by the government chemist confirmed to contain 1,688 grammes of a liquid containing 747 grammes of cocaine.
The estimated street value of the said drug was about HK$857,556.
The consignee of the parcel was “CHEUNG WING HUNG” and the consignee address of the parcel was “Flat 50, 26/F, Ranbler Oasis Hotel, Tsin Yi, NT, Hong Kong”.
The consignee address was incomplete and the manager of the Rambler Oasis Hotel agreed to participate in a controlled delivery operation. As a result, a notification for collection of speedpost item was left at the front desk of the hotel on 11 August 2021. Later on the same day, the defendant collected the notification and it was discovered that at the time he was the tenant of Room 2650 of the hotel.
On 12 August 2021, the defendant went to the Tsing Yi Post Office to present the notification and collected the said parcel. He was arrested outside the post office by the Customs officer. Upon caution at the scene, he said he was instructed by a friend Anson to collect a parcel for a reward of HK$1,000.
In the subsequent video-recorded interview, he admitted that his friend Anson asked him to collect the parcel, and he would receive HK$1,000 as the reward upon successful delivery.
The defendant admitted that at the material time, he possessed 1,688 grammes of a liquid containing 747 grammes of cocaine for the purpose of trafficking.
The defendant is now aged 46 years of age. He was 43 years old at the time of the offence. He is married with one daughter who is now about 9 years old. He has received education up to Form 5 level and he used to work as a driver in a logistic company earning about HK$25,000 per month. He has no previous criminal conviction in Hong Kong.
In mitigation, counsel Mr Anthony Yuen submitted that in this particular case he was only acting as a courier, helping someone to collect the drug from a post office. Therefore his role should be regarded as the lowest in the hierarchy of drug trafficking. Counsel agreed that there was an international element in this case because the drug was posted from overseas.
Having taken into account the role and culpability of the defendant, counsel also urged this court to consider that the strongest mitigating factor was the plea of guilty by the defendant. However, there was an application for a reversal of his guilty plea which had wasted the court certain amount of time. Counsel relied on the authority of HKSAR v Thattephin Tanyamon CACC 428/2007 and urged this court to allow a one-fourth reduction of sentence.
In sentencing the defendant, I do bear in mind the approach set out by the Court of Appeal in the case 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.
According to the revised guideline in the case of HKSAR v Huang Ruifang [2025] 2 HKLRD 138, the starting point for trafficking in between 500 and 1,500 grammes of cocaine narcotic is 16 to 20 years’ imprisonment after trial. So the mathematical starting point for trafficking in 747 grammes of cocaine would be 16 years and 11 months’ imprisonment.
The mathematical starting point is appropriate for persons at the lower bottom of the trafficking hierarchy such as storekeepers and couriers. In this case, I accept counsel’s submission that the role of the defendant was merely that of a courier. The existence of an international element, if any, should be considered as part of his role and culpability in the case.
In the case of HKSAR v Wasim CACC 77/2019, the Court of Appeal has said that for there to be an international element involved in the offence, it must be apparent from the facts alleged against the accused person. In this particular case, according to the Summary of Facts which the defendant have pleaded guilty, there is no or not sufficient evidence to prove that the postal parcel was imported from overseas into Hong Kong. There was no mention of such matter in the whole Summary of Facts. Also there was no admission by the defendant that he knew the parcel of drug was imported into Hong Kong. Of course, in the circumstances, I am not satisfied that there was an international element involved in this case.
So the case against the defendant was simply that he collected a parcel knowing that it contained dangerous drug. I take the view that the international element is not made out in the offence. As such, I will not enhance the starting point of the sentence for the so-called international element.
Taking into account the role and culpability of the defendant as a courier which lies at the lower bottom of the trafficking hierarchy, I will adopt 16 years and 11 months as the starting point after trial.
The defendant pleaded guilty to the offence on 7 March 2024. As such he should be entitled to the full one-third discount of sentence. However, when he first appeared in the Court of First Instance on 29 July 2024, on that occasion he was unrepresented and he informed the judge that he had applied for Legal Aid. As a result, the judge ordered the plea and sentence hearing to be set down at least two months from the date of 29 July 2024.
The next hearing was 25 October 2024. It was a mention hearing before me. On that occasion the defendant was represented by counsel Mr Anthony Yuen. I was informed of his indication to apply to reverse plea.
Another mention hearing was fixed on 3 December 2024. In that hearing I gave directions in respect of the application to reverse plea, for the former legal team and the defendant to file their affidavits in respect of the plea reversal application. The defendant’s application to reverse plea was heard and dismissed by me on 13 August this year. On that occasion, again, both the prosecution and the defendant were legally represented.
In the case of Thattephin Tanyamon, the Court of Appeal agreed with the judge’s decision to reduce the appellant’s discount because the appellant had actually wasted time and manpower to process her application for reversal of plea. In that case, the Court of Appeal upheld a discount of one-fourth.
In the later case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the Court of Appeal stated at paragraph 17 that the time factor involved in hearing the application to reverse plea is only one of the circumstances to be considered in sentencing.
In this particular case, there were certain amount of court time and effort wasted in handling the defendant’s application to reverse plea. Since his first appearance in the High Court for mention on 29 July 2024, instead of setting down a date for plea and sentence, there were two mention hearings on 25 October 2024 and 3 December 2024 respectively. His application to reverse plea was actually heard on 13 August this year. As counsel rightly conceded, a certain amount of time and effort was wasted. I do bear in mind that on each occasion in those mention and application hearings, both the defence and the prosecution were legally represented.
Having considered all the circumstances including the history of this matter and the time factor, I consider that the appropriate discount to be given to the defendant should be 25 per cent.
So from the starting point of 16 years and 11 months’ imprisonment, after the 25 per cent discount the appropriate sentence should be that of 12 years and 8 months’ imprisonment. This is the sentence that I would impose on the defendant.