COURT: The defendant is committed to this court for sentence concerning two charges. Charge 1, attempting to traffic in a dangerous drug. The particulars are that on 10 September 2020, at the entrance of Flat 319, 3rd Floor, Alhambra Building, Nos. 383 to 389C Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 26,745 grammes of liquid and damp solid containing 8,945 grammes of cocaine.
And the 2nd charge, trafficking in dangerous drugs. On the 10 September 2020, at sub-room B, Flat 319, 3rd Floor, Alhambra building, Nos. 383 to 389C, Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely:
(1) 257.03 grammes of a crystalline solid containing 255.12 grammes of methamphetamine hydrochloride;
(2) 13.5 grammes of a solid containing 10 grammes of methamphetamine;
(3) 172 grammes of a liquid containing 164 grammes of methamphetamine hydrochloride.
The defendant admits the facts submitted to court and he is convicted as charged. The facts admitted are these.
At about 11.38 pm on 6 September 2020, Liu Chui-man, representative of the consignee, ie, Hera Logistics Limited, Hera, presented an inbound air consignment in a pallet from the United States, which was affixed with freight labels showing MAMW No. 160-23862451, and HAWB No. AE-14321 and furnished a set of documents including master airway bill and shipment release form for customs clearance at Cathay Pacific Cargo Terminal.
In the presence of Mr Liu, SCO9902, C016316, conducted examination on the consignment. In the consignment, there were 20 black and white carton boxes and four brown carton boxes. In the said 20 black and white carton boxes, 45 out of 240 wine bottles were found containing liquid cocaine, whereas no contraband was found in the four brown carton boxes.
The content of the set 45 wine bottles were later sent to the government laboratory for examination and the government chemist confirmed that the said 45 bottles contained a total of 26,445(26,745?) grammes of liquid and damp solid containing 8,945 grammes of cocaine.
The C&E then contacted Hera and it was confirmed that the said consignment consisted of two sub-house airway bill and a consignment with dangerous drugs concerned with the sub-house airway bill numbered AE-14321A only, the consignment, and the defendant was the consignee of the consignment.
On 9 September 2020, the C&E replaced all the 240 bottles of wine in the consignment with 240 bottles of genuine wine as dummy for the purpose of conducting control delivery. At around 9.23 am on 10 September 2020, a Cantonese-speaking male called Hera and claimed that he would arrive within an hour to collect the consignment.
At around 10.02 am on the same day, the defendant arrived at the office of Hera, which was located at Edwick Industrial Centre. CO16118, who was disguised as a staff of Hera, approached the defendant.
Upon request by CO16118, the defendant wrote the waybill number AE-14321A on a piece of white paper for collection of the consignment. CO16118 later showed a copy of sub-HAWB numbered AE-14321A to the defendant and he confirmed that he was the consignee. The defendant then submitted his identity document as proof of identity to CO16118 for verification and CO16118 made a photocopy of the defendant’s identity document as record.
Afterwards, CO16118 led the defendant to the consignment for checking the information as stated on the freight label affixed thereon as well as copy of sub-HAWB numbered AE-14321A. After confirming all shipment information, including consigner, consignee, and declared contact to be correct, the defendant signed on the copy of sub-HAWB to acknowledge receipt of consignment.
Defendant then requested CO16118 to cut open the outer wrapping of the consignment. After CO16118 used a cutter to cut open a small portion of the outer wrapping, defendant first used his mobile phone to take a photo of the consignment, and later removed the whole piece of the outer wrapping. The defendant then relocated some of the carton boxes on the pallet and used a trolley lifter to convey the pallet from Hera to the cargo platform at ground floor of Edwick Industrial Centre.
At about 10.32 am on the same day, the defendant moved the carton boxes of the consignment onto a light goods vehicle and left for Alhambra Building. Upon arrival, defendant unloaded some of the carton boxes from the said light goods vehicle onto a trolley.
The defendant then conveyed the trolley with carton boxes to the lift lobby of Alhambra Building. Later, the defendant moved the trolley with the carton boxes into the lift and eventually arrived at the doorway of Room 319, 3rd Floor, Alhambra Building, Room 319.
At about 11.10 am on the same day, the defendant entered the password to open the main entrance of Room 319. He was then intercepted and arrested by C&E officers. Under caution, the defendant remained silent.
The defendant was then escorted to Room 319. Upon inspection, it was found that Room 319 was divided into three rooms, namely, sub-room A, sub-room B, and sub-room C. Each of the sub-rooms were locked with passwords. Inquiries were made with Chan Wai-ki, who was responsible for the tenancy matter of the subdivided rooms of 319, and Chan supplied the C&E officers with the password of sub-room B.
In the presence of the defendant, search was conducted inside sub-room B apart from finding 16 carton boxes containing 182 bottles of wine. The following items were found:
(1) one plastic container, E51, containing 172 grammes of a crystalline solid, containing 171 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E50;
(2) one glass container, E52, two plastic containers with covers, E53, one roll of tinfoil paper, E55, and one electronic scale, E54;
(3) two plastic bottles, E56;
(4) one green plastic bucket, E49, containing 0.42 grammes of a crystalline solid containing 0.41 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E48;
(5) disposable gloves, E32;
(6) plastic covers, E12;
(7) measuring cup, E13;
(8) funnel, E14;
(9) two scoops, E15;
(10) thermometers, E16;
(11) plastic stick, E18;
(12) plastic sieves, E19;
(13) stainless steel sieves, E24;
(14) black plastic gloves, E28;
(15) blue plastic container, E21, containing 3.82 grammes of a crystalline solid containing 3.8 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E20;
(16) plastic containers, E23 and E26, containing a total of 10.66 grammes of a solid containing 10.61 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E22 and E25;
(17) container covers, E34;
(18) plastic containers, E35;
(19) metal pots, E38;
(20) metal plate, E45;
(21) plastic container, E37, containing 172 grammes of a liquid, containing 164 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E36;
(22) plastic container, E40, containing 0.98 grammes of a crystalline solid, containing 0.98 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E39;
(23) plastic container, E43, containing 61.9 grammes of a crystalline solid containing 61.1 grammes of methamphetamine hydrochloride, a salt of methamphetamine, E41, and a piece of fabric containing 13.5 grammes of a solid containing 10 grammes of methamphetamine, E42;
(24) plastic bucket, E59, containing 7.25 grammes of a crystalline solid containing 7.22 grammes of methamphetamine hydrochloride, E50, a salt of methamphetamine, E58;
(25) plastic buckets, E60;
(26) a glass bottle, plastic straw with one glass bottle with a bulb shape at one end containing 0.10 grammes of a solid, containing 0.07 grammes of methamphetamine, E82;
(27) sieve;
(28) corkscrew, E67;
(29) spoon, E68;
(30) GoGoVan receipts, E60 to 70;
(31) cash memo, E71;
(32) two deposit receipts issued by Bank of China, E72 to 73;
(33) baggage tag in the name of the defendant;
(34) MasterCard in the name of the defendant, E8;
(35) iPad, E7;
(36) a Huawei mobile phone in blue colour, E4;
(37) Xiaomi mobile phone, E6;
(38) a Huawei mobile phone in silver colour, E3.
The defendant was then arrested. Under caution, he said E80 to 82 belonged to him and he used them to smoke ‘Ice’. He pointed out to E50 and stated that the said crystalline solid was ‘Ice’ and it belonged to him. And ‘Ice’ was a drug.
The estimated market price of the methamphetamine and cocaine involved were HK$287,725.06 and HK$16,583,214 respectively.
The police found fingerprints of the defendant on E40. Defendant was the account holder of the Airbnb account with account name, “Darknite888”. According to the Airbnb records, the defendant was the tenant of sub-room B. Chan confirmed that the defendant paid the rental of sub-room B by depositing funds into Chan’s account with the Bank of China.
The bank records and the CCTV footages of Bank of China, Yau Ma Tei branch showed that the defendant went to the said branch for depositing money into Chan’s account for paying the rental of sub-room B. The relevant deposit slips were also found in sub-room B when the C&E officers searched sub-room B, ie, E72 to 73.
Examination had been conducted upon E4. It was found that the defendant used the Airbnb application installed in E4 to access his account and to book sub-room B. Besides a photo showing the address of Hera was also found in the photo album of E4.
The defendant now admits and accepts that at all material times he attempted to traffic the drugs as per Charge 1 and traffic the drugs as per Charge 2.
Personal background and mitigation
The defendant is 44 years old, single. He is a Canadian international. The defendant has four brothers. They are residing in Canada. He works as a renovation worker in Canada, but he cannot work in Hong Kong due to his immigration status.
The defendant arrived Hong Kong in November 2019 on a Canadian visa, eligible for three months of stay. He has a criminal conviction record for breach of condition of stay. For clarity, I will not take into account his criminal record for the present purpose.
Counsel submits said the defendant was approached by a good friend whom he has known for 25 years. The friend offered the defendant a job being a paid trip to Hong Kong, stay for a few months and help his friend “out”. Other specifics of the job or the pay were not mentioned. The defendant was told that it involved good money.
Counsel informed this court that the defendant has all along been financially supported by his friend, whom he has lost contact.
Discussion
For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as cocaine and methamphetamine. The drug has terrible consequences for the individual, but there are also serious consequences for the community.
The guidelines for trafficking in cocaine are laid down in AG v Pedro Nel Rojas, the case of Lau Tak Ming and the case of Abdallah Anwar Abbas. The quantity of cocaine involved, 8,945 grammes, fall within the band of 26 to 30 years.
As regards to sentencing guidelines for methamphetamine, the sentencing guidelines are contained in the case of Ching Kwok Hung as amended in the case of Capitania Edwin F as revised in the case of Tam Yi Chun. The total quantity of methamphetamine involved, 429.12 grammes, fall within the band of 15 to 20 years.
In relation to Charge 1, although the defendant only attempted to traffic in cocaine without carrying out the full substantive offence, the only reason he could not have done so because the drugs were intercepted beforehand.
With that said, the defendant’s attempt to receive the drugs shall bear an equal degree of seriousness and capability to that of the substantive offence. Accordingly, the defendant will be sentenced for Charge 1 based on the guidelines of the substantive offence.
Arithmetically, for Charge 1, 8,945 grammes of cocaine would attract a sentence of 27 years and 9 months’ imprisonment, whereas for Charge 2, 429.12 grammes of methamphetamine would attract a sentence of 17 years and 1 month imprisonment.
I have cross-checked the above notional sentences against the combined approach in HKSAR v Chan Yuk Leong, namely, the absurdity test, conversion test and ratio test. All three tests arrive at a notional starting point as to the nature and quantity of drugs of 27 years and 11 months’ imprisonment. Therefore, the appropriate notional starting point shall be 27 years and 11 months’ imprisonment.
As to the role played by the defendant, I have taken into account the fact that the defendant intended to transport and store a large quantity of liquid cocaine in a subdivided flat he rented. The different forms of methamphetamine were found therein as well. He admitted under caution some drugs and some of the paraphernalia found in the premises belonged to him. His fingerprint was also found on some drugs seized.
I also note the immigration status of the defendant which prevented him from working legitimately in Hong Kong. The defendant admitted under caution that he smoked ‘Ice’. Whilst I will not venture into speculation as to how his friend could support the defendant’s living as well as his drug-taking habit nor will I find that the defendant came to Hong Kong for the purpose of engaging drug dealing activities.
However, given his role played as admitted in the Summary of Facts and that he rented the room in question, I find that he is on the one hand a courier and on the other hand I have also taken into account the factors which I have listed out above. Therefore, I find that the role played by the defendant according to the case of Herry Jane Yusuph as a courier but towards the more serious end of that band.
The present case as I have said also involves an international element but this is not a classic case of the defendant bringing drugs into Hong Kong, as the defendant was instructed to receive a parcel and was given the documents for delivery, he must have known that he was about to receive the drugs mailed from overseas.
In light of the factors as stated and in view of the judgement of the case of Lee Ming Ho, I shall enhance the sentence by 6 months’ imprisonment to reflect the role played by the defendant and the relevant culpability. As to mitigating factors the defendant made a timely plea for which a full one-third discount is warranted.
You are sentenced to 18 years and 11 months’ imprisonment.