COURT: The defendant pleaded guilty to Count 2 on the indictment, namely, trafficking in 31.8 grammes of a solid containing 26.5 grammes of 3,4-methylenedioxymethamphetamine. On the first day of the trial, she pleaded guilty. She pleaded guilty to that count after unsuccessful applications of S.16 discharge on Count 1 and severance of the two counts on the indictment. The severance application is mounted on the likely prejudicial effect that the 2nd count might have on the 1st count.
The defendant was found guilty after trial on Count 1 which is attempt to traffic 4 kilogrammes of a solid containing 3.30 kilogrammes of MDMA. Although the charge is one of attempt, but the facts were such that the defendant was just short of receiving it from the disguised custom officers.
To recap, the facts of the case are as follows. A parcel from Germany purported to be candy, Christmas chocolate and biscuit was sent by air to Hong Kong. The parcel in fact had in it 4 kilogrammes of a solid containing 3.30 kilogrammes of MDMA. The parcel was addressed to Mr Lee Wang at his office address. Mr Lee, who worked outside of the office most of the time, had no knowledge of the parcel nor was he expecting any parcel from Germany.
After a failed controlled delivery, the defendant made inquiries for its redelivery. After several telephone contacts, another controlled delivery was carried out. The defendant signed for the receipt of the parcel in this second controlled delivery. Arrest was declared upon her when she was about to take the parcel from the custom officers who disguised as postmen.
After she was arrested, she was taken to her residence for a house search. Two plastic bags of MDMA weighted 31.8 grammes containing 26.5 grammes of narcotics were found. Found therein was also a metal spoon, a plastic spoon and a wooden rod. She admitted under caution that the drugs found at home belonged to her.
The defendant was born in Hong Kong on 26 May 1978. She has a clear record. She has a son aged 17, and they live together with her boyfriend. She attained up to Form 5 education and at the time of arrest was working as a clerk in the same company as Mr Lee, earning a monthly income of 17,000 a month.
I have also taken into consideration the letter from Father John Wotherspoon whose impression on the defendant is that she is a person of good heart and good character. I must say father saw her only after she was remanded in custody. She had adjustment problem when she was first remanded and was referred to psychological unit for assessment. She was first seen in August 2021, and the medical note says:
“Reported fair adjustment, indicated worries on her intimate relationship and indexed offence, supportive counselling and advice rendered and looked receptive, positive coping skills enhanced, and no genuine self-harm ideation detected.”
She was next seen in September 2021. According to the medical notes, she had angry mood and admitted active self-harm thought. Counselling was provided, and in view of her self-harm thought, psychological treatment is suggested and followed up. She was then on and off seen by the clinical psychologist. Sometimes she refused to be seen or interviewed. On some occasions, she requested for assistance.
According to the notes, she was last seen on 14 June 2022. The notes say, “Adjusted well after changing workshop, supportive counselling given and no self-harm ideation detected.”
In Hii Siew Cheng [2009] 1 HKLRD 1, guideline was set by the Court of Appeal concerning MDMA. It is laid down for 10 to 50 grammes, sentence ranged from 4 to 6 years; and over 1 kilogramme, 14 years upwards. That is the top band set by the Court of Appeal at that time.
In Sin Chung Kin [2013] 1 HKLRD 627, I quote:
“...a reasonable and logical approach must be that the larger the quantity of the drug is, the more severe the sentence will be.”
The Court of Appeal said:
“The starting points for trafficking in dangerous drugs are determined according to the quantities of the drugs involved. For trafficking in large quantities of dangerous drugs, the tariffs laid down by the Court of Appeal have never exceeded 20 years’ imprisonment.”
The court then referred to the earlier guideline laid down in Hii Siew Cheng where in the guideline, over 14 years was suggested for over 1 kilogramme of ketamine. And for sentencing purposes, ketamine and MDMA are treated the same.
The Court of Appeal in Sin Chung Kin said:
“...for trafficking in 2,000 grammes and 3,000 grammes of ketamine (which, respectively, doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.”
The court further said - I quote:
“...if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity.”
For the quantity of MDMA in the 1st count and her role in it, which I accept is in the category of a storekeeper or courier, no explanation was put before me as to the commission of the offence. Though there is no evidence of any reward, it is inconceivable that she derived no benefit.
As said in the case of Yusuph [2021] 1 HKLRD 290, Court of Appeal has said personal circumstances were of far less importance than denunciation, deterrence and punishment in cases of trafficking in dangerous drugs. For these reasons, the Court of Appeal said consistency was very important.
In the circumstances, I adopt a starting point of 20 years and 6 months for the 1st count. However, there is an aggravating factor in that the parcel was flown from Germany into Hong Kong, and for this aggravating factor, I, being as merciful as I can, enhance the starting point by 1 year. I must say it gives me no pleasure to sentence a woman of your age, who has never been in trouble, to a lengthy term of imprisonment. However, as said by the Court of Appeal, consistency was very important in cases of trafficking in dangerous drugs.
I can find no mitigating factor in the serious crimes that you have committed. Though it is urged upon me that you had made an attempt to assist the authority, Mr Arthur submitted that though the assessment from the Customs and Excise is that the information you provided is not useful, nevertheless, Mr Arthur asked me to take that into consideration as your attempt to assist.
I am afraid I cannot accede to that not only because no actual assistance was rendered but also your attempt to assist came after a contested trial.
For the quantity of MDMA in the 2nd count, likewise, I accept the role that you have played in it. I adopt a starting point of 4 years and 9 months. The only mitigation is your belated plea of guilty after unsuccessful application of severance. I will give you a discount of 9 months, representing just under a 16 per cent discount.
Ms Lau, please stand. For Count 1, you are sentenced to a term of imprisonment for 21 years and 6 months. For Count 2, you are sentenced to 4 years. Lastly, guided by the six steps set by the Court of Appeal in Yusuph, I stood back and looked at the sentences on both counts to make sure that it is fair, balanced and just. Having done that, I order that the sentences should run concurrently.