COURT: The defendant has been committed to this court for sentence in respect of one charge of trafficking in a dangerous drug. The particulars are that on 3 May 2022, at the lift lobby on the 14th floor, Por Mee Factory Building, 500 Castle Peak Road, Lai Chi Kok, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 9,901 grammes of a solid containing 8,144 grammes of ketamine.
The facts admitted by the defendant are these. On 2 May 2022, officers of the C&E Department examined an incoming consignment originated from Spain at the express cargo examination hall. There were nine carton boxes in the consignment. Amongst these carton boxes, one of them was empty, six of them were found to be containing electronic parts, only while the remaining two carton boxes were found to be containing some electronic parts and six bags of dog food.
Upon further examining the six bags of dog food, ten packets of ketamine and some genuine dog food pellets were found therein. The government laboratory later confirmed that the ten said packets contained a total of 9,901 grammes of a solid containing 8,144 grammes of ketamine.
The consignee of the consignment was the defendant, and the consignee address was Room B02, 14th Floor, Por Mee Factory Building. The consignee telephone number was 90334305.
On 3 May 2022, the C&E mounted a controlled delivery operation. At about 4.30, PW1 and PW2 disguised as FedEx couriers and arrived at the lift lobby of 14th Floor, Por Mee Factory Building with the consignment. PW1 rang the doorbell of Room B02 but no one answered. At 4.33, PW1 called the number again, and the defendant answered the call, who told PW1 that he was unable to receive the consignment at the moment. PW1 and PW2 thus left the scene with the consignment.
At around 4.45 pm on the same day, PW1 found that he had some missed calls from the number. PW1 therefore called back, and the defendant asked PW1 to wait as he was on his way back to Lai Chi Kok. PW1 then told the defendant that he would deliver the consignment half an hour later, and reminded the caller that a copy of the airway bill was required for verification.
At about 5.22 pm on the same day, PW1 and PW2 arrived at the lift lobby on the 14th Floor of the building again with the consignment. They saw the defendant coming out from Room B with a trolley and approaching them. PW1 then asked the defendant if he had any FedEx consignment to collect and the defendant replied yes.
Upon the request of PW1, the defendant dialled the phone number provided, and it was confirmed that the incoming call number was the number referred to earlier on. PW1 then checked the Hong Kong ID card of the defendant, and confirmed that the defendant’s name was the same as the consignee’s name shown on the airway bill.
Afterwards, PW1 then asked the defendant to check the shipping information affixed on the consignment’s outer plastic wrappings. The defendant did so and produced his mobile phone to show PW1 an image of the airway bill of the consignment. The defendant signed to acknowledge the receipt of the consignment. He then used a door access card to open the door of Room B. The defendant then transferred one carton box of the consignment on his trolley and intended to pull the trolley towards the direction of Room B02. The operation then turned overt and the defendant was arrested.
Under caution, he said an unknown man offered him a collection task with monthly reward. He named the unknown man as “收件” in his mobile phone, hereinafter referred as “X”. After collection, he needed to convey the consignment back to Room B02, and he did not know how the consignment would be handled afterwards. He would receive $20,000 as reward upon completion of the task, and he refused to assist C&E officer to conduct further controlled delivery operation.
The door access card used by the defendant to open the main door of Room B and a key were seized from the defendant. Under further caution, the defendant said the door access card and door key were given to him by a man at the lobby on the ground floor of the building a week after he had been tasked to collect the consignment.
The number was registered under the name of the defendant’s father. An oversea number was found from his mobile phone, and the conversation relating to the task of collecting the consignment was discovered.
The estimated market price of the ketamine involved HK$4,693,074.
House search was later conducted at the defendant’s reported residence. No incriminating items, including drug consumption paraphernalia, were found therein.
The defendant now admits and accepts that at all material times he unlawfully trafficked in 9,901 grammes of a solid containing 8,144 grammes of ketamine.
Personal Background and Mitigation
The defendant is 20 years old. He committed the present offence when he was 17 years old. He has a clear record. He was born and raised in Hong Kong and has received education up to Secondary 5. Prior to his remand, he lived with his grandparents, father and younger sister. His mother worked in mainland China. Since the defendant’s remand, the mother moved back so as to visit him daily. The defendant’s grandparents unfortunately passed away during his remand.
The defendant was diagnosed with ADHD, which impacted on his academic performance and achievement. However, his school principal and teachers confirmed that the defendant was hardworking, polite and compassionate towards the others. He was very active in extra-curricular activities and sports.
Mitigation letters were submitted to this court. The defendant wrote in his letter things happened to him and his family since the offence. He started to realise his stupidity and the harm caused to his family members. He is prepared to bear the responsibility and is extremely regretful. He will not give up and will continue to equip himself for the future.
Letters from the principal, teachers and coaches all have positive things to say about the defendant. The defendant’s family members, relatives, friends, teachers are in court to show support.
Discussion
For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as ketamine. The drug has terrible consequences for the individual, but there are also serious consequences for the community. The view of the community is reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The sentencing policy underlying is to impose deterring sentences.
The courts have provided sentencing guidelines for trafficking in dangerous drugs. The guidelines for trafficking in ketamine are laid down the case of Secretary for Justice v Hii Siew Cheng. The quantity involved in the present case places the case in the highest band of the tariff, by which the sentence shall be over 14 years’ imprisonment.
In the case of HKSAR v Sin Chung Kin, the Court of Appeal held that if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years. At the same time, the Court of Appeal clarified that it is not possible to enhance the starting point proportionally. Therefore, a reasonable and logical approach shall be adopted to the extent that the larger the quantity of the drug is, the more severe the sentence will be.
With that being said, in cases where a large quantity of ketamine is involved, the court should exercise its discretion to decide on an appropriate sentence in view of the circumstances of the particular case. In sentencing the defendant, I consider the six-step approach suggested in Herry Jane Yusuph.
As to the role played by the defendant, in light of the evidence adduced and the facts admitted, in particular the instructions the defendant received as to the receipt of the parcel, I find that the role played by the defendant was a mere courier and storekeeper. I have also been provided with, very helpfully by counsel, the case of Chan Yat Hong. In view of the quantity of the drugs involved, I adopt a starting point of 20 years and 6 months’ imprisonment.
According to the facts admitted, the defendant had a copy of the airway bill. He had been communicating with a number from overseas. He knew he was collecting a parcel from abroad. These factors affect the consideration of the role played by the defendant.
Having considered the cases of Ali Qasim and Lee Ming Ho, I accept that the defendant was merely collecting the parcel from abroad. Balancing the role played by the defendant, his knowledge that the parcel would cross the border and that the parcel did cross the border, I enhance the sentence by 6 months.
Given the defendant’s timely plea, a full one-third discount is warranted, and it would result in 14 years’ imprisonment. I then have to consider the likely crushing effects of the sentence on the defendant and the totality principle. I have taken into account the defendant’s personal background, family background, things happened to him and the family after his arrest, the support from various people, his young age. In these circumstances, I am persuaded that he was manipulated or misguided by bad company. Therefore, I further reduce the sentence by 6 months.
Defendant, I now sentence you to 13 years and 6 months’ imprisonment.