COURT: Defendant, these are my reasons for sentence. You are charged with one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The particulars of the offence are that, on the 7th day of January 2024, at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 5,531 grammes of tablets or tablet fragments containing 1,743 grammes of 3,4-methylenedioxymethamine.
The facts to which you have agreed are these. At about 7.24 am on 7th of January 2024, Senior Customs Officer, PW1 stopped the defendant for customs clearance at Customs Arrival Hall B, Hong Kong International Airport. Customs Officer PW2, under PW1’s supervision, examined your luggage, the defendant’s luggage. PW2 got the defendant’s confirmation that the luggage belonged to him, the defendant unlocked the luggage for PW2’s examination.
PW2 noticed an atypically thick base of the luggage. The thick base was protruding at the bottom of the luggage above the wheels, thus PW2 suspected that there was a concealed compartment. PW2 asked the defendant what that base was, defendant said he did not know. PW2 proceeded to drill open the bottom part of the luggage and found tablets of suspected dangerous drugs. A rapid drug test was conducted and the result was positive to MDMA. PW2 arrested the defendant and cautioned him.
The tablets seized from the defendant’s luggage were sent to the government laboratory for examination. It was confirmed that 5,531 grammes of tablets or tablet fragments containing 1,743 grammes of MDMA.
Under caution, the defendant claimed he had no idea regarding the items concealed in the hidden compartment of his luggage. A foreign male in a foreign place gave him the luggage. He was going to pass the luggage to someone called Ah Hin, whom he met online, and he did not receive any reward.
A video-recorded interview was conducted, upon which the defendant said nothing.
According to movement record, the defendant departed Hong Kong via Hong Kong International Airport on 30 December 2023, and returned to Hong Kong on 7 January 2024, the day of the arrest. According to the boarding pass seized from the defendant and the relevant airline records, the defendant boarded on the flight CX 261 on 31 December 2023, destination was Paris, France. The defendant boarded on the flight CX 260 on 6 January 2024 returning to Hong Kong.
A search was conducted at the defendant’s residential address. No incriminating items was found. Customs Office of Information Technology unlock the mobile phone found from the defendant. Some communication between the defendant and Ah Hin could be found. There were some WhatsApp messages between the defendant and an account named “波”, which showed that instructions were given from 波 to the defendant about the itinerary, and there were arrangements being made for the defendant to come to Hong Kong, as well as allowances for daily expenses would be provided for the defendant.
The defendant now admits and accepts that at the material time, he lawfully trafficked in a dangerous drug, namely the drugs in question.
Background and Mitigation
The defendant is now 52 years old and was 50 years old at the time of the offence. He attained education up to Secondary 4. The defendant has two previous convictions in 2018, neither of which relates to drug trafficking. He is divorced and has one daughter, now age 18, with whom he resided prior to his arrest. He maintains a close and caring relationship with his daughter and has continued to provide for her following the divorce. I am informed that prior to his arrest, the defendant contributed nearly half of his monthly income towards his daughter’s living and education expenses.
The defendant entered the work force at a young age. The defendant was formerly employed as a driver back in 2010, but the traffic-related convictions in 2018 resulted in him being disqualified from driving. Thereby depriving him of his principal means of earning a livelihood. He made efforts to secure alternative employment and undertook various odd jobs to support his family. Immediately prior to his arrest, he was employed as a baggage handler for Hong Kong Air Cargo Terminals Limited, earning a monthly income of approximately HK$20,000.
In mitigation, counsel placed particular emphasis on the defendant’s timely plea of guilty and his expression of remorse. I am told that the defendant deeply regrets his foolish and reckless conduct in committing the present offence and fully appreciates the seriousness of trafficking in dangerous drugs. Counsel further submitted that the offence was committed out of financial and economic motive, rather than to sustain any drug consumption, there is no suggestion that the defendant is himself a drug user.
The defence has submitted to the court mitigation letter written by the defendant’s daughter, the contents of which have been considered.
Sentencing considerations
No doubt trafficking in dangerous drugs is a very serious offence. 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 the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
First step, identifying the relevant guideline band
The relevant guideline for trafficking ecstasy is set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The starting point for trafficking in ecstasy over 1,000 grammes is 14 years upwards. The quantity involved in the present case is 1,743 grammes of MDMA. In dealing with large quantities over 1,000 grammes, I refer to HKSAR v Sin Chung Kin, CACC 458/2011, where the Court of Appeal stated at paragraph 27 that:
“Then for trafficking in 2,000 and 3,000 grammes of ketamine (which, respectively, doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment), the appropriate starting point should respectively be no less than 18 years and 20 years.”
As such, the court is of the view that this quantity attracts a notional starting point of 16 years and 6 months’ imprisonment.
Second step, the defendant’s role and culpability
In the present case, when the defendant was stopped at the Customs clearance at the Hong Kong International Airport and the search of a concealed compartment of his luggage, revealed there are dangerous drugs. As such, international element arises for my consideration in respect of the role and culpability of the defendant.
In the recent decision of HKSAR v Lee Ming Ho, the Court of Appeal stated that the international element, which was formally treated as a separate and individual aggravating factor, should not be considered as a factor when assessing the role and culpability of the offender in identifying the appropriate starting point for the sentence. In HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal further held that the international element is merely a factor or circumstance in the commission of the offence, albeit one which normally makes the offender’s role and culpability more serious, and enhances the starting point for sentence.
The Court of Appeal in Raman Kapusamy also made clear that the international element applies equally to offenders acting as couriers. Such offenders, by importing dangerous drugs across borders, inevitably fuel the supply of drugs in Hong Kong and thereby cause harm to individuals and to society at large. Moreover, where a defendant has been found guilty of or has pleaded guilty to knowingly trafficking in dangerous drugs across borders, it must be taken that he fully understood the nature of his acts and the circumstances.
The Court of Appeal held at paragraph 60 that:
“The international element is itself capable of taking a number of different forms and may not, therefore, lend itself to a standard or uniform enhancement. The most common example to come before the courts is the courier who, for a fee or reward, crosses the border with dangerous drugs secreted in or on their person or in their luggage.”
Also, at paragraph 65, that:
“...there may be a distinction between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of dangerous drugs, which may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of punishment that will be meted out when he is caught. And the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns.”
The defendant falls into the latter category above. The defendant stated, amongst other things, under caution that the luggage had been given to him by a foreign male at an overseas location, and that he was to pass the luggage to another person whom he had previously met online.
Subsequent examination of the defendant’s mobile phone revealed instructions received from another person concerning his itinerary and the arrangement made for his travel to Hong Kong, and that allowances for daily expenses would be provided to the defendant.
On the evidence before me, I am satisfied that the defendant was acting as a courier in bringing the dangerous drugs into Hong Kong, commonly described as a drug mole. There is no evidence to suggest that his role went beyond that of a courier. Therefore, I consider the starting point should be enhanced by 2 years.
Third step, placement within the guideline band
Considering the overall role and culpability of the defendant, including the international element, I find that a starting point of 18 years, 6 months’ imprisonment is appropriate.
Fourth step, aggravating factors
I find no aggravating factors beyond those inherent in the offence itself and those already reflected in the assessment of the role and culpability.
Fifth step, mitigating factors
The defendant pleaded guilty at the earliest opportunity, for which he is entitled to the full one-third discount. As for the personal and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. Above all, it is my view that there absent any mitigating factors which warrant further reduction other than his guilty plea.
Sixth step, totality and overall fairness
After the reduction as stated, the sentence is 12 years, 4 months’ imprisonment.
I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe, and may carry an impact on the defendant, in light of his age and his personal background. Having regard to the seriousness of the offence, I will exercise my discretion to reduce the sentence by 2 months. I am satisfied that the sentence is fair, just, and balanced to the offence as well as to the defendant.
Defendant, please stand up. You are sentenced to a total of 12 years and 2 months’ imprisonment for this offence.