COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug on 8 August 2024 and he was committed to the Court of First Instance for sentence. Today, he confirms his plea and admission of the Summary of Facts.
He admitted trafficking in a dangerous drug on 24 October 2022 at Customs General Cargo Examination Hall B in the Super Terminal of the Hong Kong International Airport, when he unlawfully trafficked in 29,031 grammes of a solid containing 23,340 grammes of ketamine.
The facts are that he went to Super Terminal 1 to pick up a consignment of goods that had arrived from Amsterdam. He had hired a GoGoVan to take him there to collect this consignment of goods, with instructions to drive him onto Metro Centre Phase 2 at Kowloon Bay.
The defendant presented an authorisation letter to collect the cargo, paid for terminal charges, and proceeded to collect the consignment. He had to present the consignment to customs officers for customs clearance. They found suspicious images from X-raying some of the consignment. This was a consignment declared as metal bowls. Customs officers drilled holes in two bowls and found ketamine inside cavities.
The defendant was arrested and under caution, he explained he was asked by his boss, Alex Leung of Honor Trading, to collect the consignment. He had an authorisation letter purportedly issued by Deli Board Honor Trading Company Limited. The airway bill declared the consignee having an address in Sha Tin.
The defendant told customs officers he was instructed by his boss to deliver the consignment after collection to Room 802 of Metro Centre but was not told who to deliver the consignment to. He did say he was told by his boss to put the consignment outside the door or entrance of Deli Board Honor Trading Company Limited on the 8th floor. When asked by customs officers, he was unwilling to participate in a controlled delivery operation.
Upon a full examination of the consignment, 750 of the 1,500 bowls were found to contain secret compartments. Each compartment contained a piece of tin foil wrapped around a plastic bag containing ketamine. 750 metal bowls were found to be concealing the ketamine of this charge.
The defendant admits he was knowingly in possession of all the ketamine for the purposes of unlawfully trafficking. It is admitted that Deli Board Honor Trading Company Limited did not exist and the estimated street value of the ketamine at that time was $18,637,902.
Mitigation
The defendant is now 39 years old, and when arrested he had a clear record. At the time of his arrest, he was working in a warehouse earning $20,000 a month. He is single and lives with his mother who he financially supports.
Mr Shaw represents the defendant and has said all he can say on behalf of the defendant. His best mitigation is his plea guilty at the earliest opportunity. I have a letter, the defendant has written a letter to express his remorse.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug. The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 where over 3,000 grammes of ketamine is trafficked and the starting point should be 20 years’ imprisonment and upwards.
As far as the second step is concerned, assessing the role and culpability, I accept the submission that the defendant was acting as a courier.
Therefore, taking into account the third step, the sentence is to be determined by the relevant tariff. I have been referred to by counsel, by Mr Shaw, to HKSAR v So Wing On, CACC 296/2012, where the facts are similar. In that case, the defendant pleaded guilty to trafficking in 21,310 grammes of ketamine. The Court of Appeal observed that the starting point of 21 years’ imprisonment was appropriate.
It has been said that where the starting point may exceed 20 years’ imprisonment, the increase in sentence should not be proportional to the increase in the quantity of drug. It would be for the sentencing court to pass a sentence that is appropriate in the circumstances of each particular case.
Having considered all mitigation, in particular the defendant’s previous clear record, I find this quantity of ketamine, 23,340 grammes or 23.34 kilogrammes attracts a starting point of 21 years’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating or any exceptional mitigating factors. I find no mitigating factors other than his plea. I do not intend to take into account the drugs came in from overseas, as there is no evidence the defendant, although he did pick up the consignment from the airport, had anything to do with the importation.
The defendant will benefit from a one-third discount from that starting point of 21 years’ imprisonment. Once that discount is applied, that starting point is reduced to 14 years’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence, not only the offence, but also the defendant.
It is a very significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Therefore, the defendant is sentenced to 14 years’ imprisonment.