And the 2nd defendant, you alone are facing one charge and have pleaded guilty to this charge, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars are that on 10 March 2024, at Customs Arrival Hall A, Passenger Terminal Building, Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 41,032 grammes of cannabis in herbal form.
The facts to which you two have agreed are that at around 11.07 pm on 10 March 2024, the 1st defendant passed through the Green Channel at Customs Arrival Hall A of the Hong Kong International Airport and was intercepted for customs clearance. He was carrying two check-in suitcases at the time.
The Customs officer asked whether the suitcases belonged to him, and the 1st defendant replied that someone had given them to him. The 1st defendant did not have the key to unlock the suitcases. The Customs officer then broke the padlocks of the two suitcases and found therein a total of 73 sealed plastic packets containing a total of 36,543 grammes of herbal cannabis.
The 1st defendant was arrested and stated under caution that someone gave the suitcases to him in Canada and asked him to bring it to Hong Kong. He would bring the suitcases to Eaton Hotel where someone would find him. He received a free ticket to Vietnam as his reward.
The 1st defendant also had on him boarding passes, travel itinerary, baggage identification tags for the two suitcases, hotel itinerary for Eaton Hotel, an iPhone and cash of about CAD2,000.
At around 11.13 pm on the same day, the 2nd defendant passed through the Green Channel of the Customs Arrival Hall A and was intercepted for customs clearance. He was carrying two check-in suitcases and a backpack.
Upon enquiry, the 2nd defendant confirmed that the two suitcases belonged to him but stated that he did not have the keys. Customs officers then broke the padlocks on the two suitcases and found therein a total of 82 plastic sealed packets containing a total of 41,032 grammes of herbal cannabis.
He was then arrested and stated under caution that someone in Vancouver had given him the suitcases and someone would pick him up outside afterwards.
The 2nd defendant’s backpack was searched and a bundle of eight keys which could be used to unlock the padlocks on the 1st and 2nd defendants’ suitcases was found in the front pocket.
The 2nd defendant also had with him boarding passes, travel itinerary, baggage identification tags, hotel itinerary for Eaton Hotel, an iPhone and cash of about US$300, CAD6,000, HK$15, 100 yen, and about 8,000 won.
Preliminary enquiry conducted with D1 with the assistance of a Vietnamese interpreter.
The 1st defendant stated that someone called Andy bought him a flight ticket in Canada and asked him to bring the two suitcases to Hong Kong, that the 2nd defendant was Andy’s friend and sat beside him on the flight. The 1st defendant had to follow the 2nd defendant’s instructions because the 1st defendant did not know anything and he only received a flight ticket without any other reward.
A confrontation was later arranged between the 1st and the 2nd defendant. Under caution with the assistance of Vietnamese interpreter, the 1st defendant stated that the 2nd defendant was Andy’s friend but he did not know his name. Andy had asked him to bring two suitcases from Canada to Hong Kong with the 2nd defendant. He took the same flight with the 2nd defendant from Canada to Hong Kong.
On the other hand, the 2nd defendant stated under caution that he did not know the 1st defendant and that he had seen the 1st defendant at the airport waiting room in Vancouver.
The estimated street value of the drugs in the 1st defendant’s suitcases was HK$7,052,799. And the value of the drugs in the 2nd defendant’s suitcases was HK$7,919,176.
The flight records confirm that the 1st and 2nd defendant had boarded flight from Vancouver to Tokyo on 9 March 2024, and flight from Tokyo to Hong Kong on 10 March 2024. Their flights were booked by the same travel agency.
Movement records show that the 1st and 2nd defendant had respectively entered Hong Kong at 10.29 pm and 10.27 pm on 10 March 2024. Eaton Hotel confirmed that a booking was made under the 2nd defendant’s name for a double room for two adults, for 10 to 12 March 2024. The booking was made on 6 March 2024 and $968 was paid.
The 1st defendant’s mobile phone was found to contain SMS messages which contained his personal details, and Viber messages contained photo of him of the boarding pass from Tokyo to Hong Kong.
A video-recorded interview was conducted with the 1st defendant with the assistance of a Vietnamese interpreter. The 1st defendant stated under caution that he lives in Canada and worked as a construction worker, earning around CAD4,000 per month.
The two suitcases were given to him by someone named Andy Loi in Canada. Andy knew that the 1st defendant wanted to return to Vietnam for fun and could not afford the flight ticket. So he asked the 1st defendant to help bring two suitcases to Hong Kong and pass them to his friend. In return, Andy bought him plane ticket to Vietnam.
Andy told him someone would accompany him to Hong Kong as he did not know the way, and someone would meet him outside the airport to pick up the suitcases. Andy had kept the two suitcases in his own car and gave the 1st defendant the flight ticket before taking him to the airport. Andy also introduced the 2nd defendant to him and said that the 2nd defendant would be showing him the way and the 1st defendant should listen to whatever the 2nd defendant told him. Andy arranged the flight tickets and accommodation for the 1st and the 2nd defendant, and they were going to stay at Eaton Hotel booked by Andy.
A video-recorded interview was also conducted with the 2nd defendant with the assistance of a Vietnamese interpreter. He stated under caution that he lived in Canada and had been working as a chef with a monthly salary of CAD3,000. He owed debts of around CAD8,000.
He came to Hong Kong because a friend named Nguyen Van Anh asked him to carry the suitcases to Hong Kong. Anh said he would buy him a flight ticket to Vietnam in return. Anh asked him to take someone along him with on the trip, and that someone would be waiting for him to collect the suitcases when he arrived in Hong Kong. The 2nd defendant did not know who the person was and did not have their contact. Anh said he had given the 2nd defendant’s photo to them.
The 2nd defendant did not know the 1st defendant and had first met him when Anh drove them to the airport in Vancouver. Anh gave the 2nd defendant two suitcases and gave the other two to the 1st defendant. Anh had given the 2nd defendant flight ticket to Vietnam because he wanted him to lead the way for the 1st defendant.
Background and Mitigation
The 1st defendant is now 69 years old and was 67 years old at the time of the offence. He attained education up to primary school level. He is married and has a 40-year-old daughter. His mother, aged 95, resides in Vietnam. He has no previous conviction in Hong Kong.
Prior to the commission of the present offence, the 1st defendant worked in the construction industry and earned approximately CAD4,000 per month. He had received financial assistance from the Canadian Government for a period of about three years.
The 2nd defendant is now 50 years old and was 49 at the time of the offence. He received education up to secondary level. He married at the age of 17 years old but subsequently divorced. He has a daughter, now 17, who lives with his ex-wife. He has no previous conviction in Hong Kong.
The 2nd defendant migrated to Canada some years ago and resided with his parents. A few years ago, he remarried. His wife currently resides in Vietnam. He visited her from time to time. Prior to the present offence, the 2nd defendant was employed as a chef in Canada, earning approximately CAD3,000 per month.
In mitigation, counsel for the 2nd defendant submitted that the 2nd defendant had borrowed money to travel to Vietnam to visit his wife. It was said that prior to the trip, a friend approached him and induced him to carry drugs to Hong Kong. Counsel submitted that the 2nd defendant was told that his travel expenses would be reimbursed and that he would receive a monetary reward upon his return to Canada. In the event, the 2nd defendant received no payment and in retrospect he believed that he had been deceived.
Counsel further emphasised that the 2nd defendant was not the mastermind of the operation. He was informed by his friend that another person, who later turned out to be the 1st defendant, would be travelling with him.
Counsel for both defendants draw attention to their timely guilty pleas.
Sentencing Considerations
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 approach the matter with reference to the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
First step: identifying the relevant guideline band
The relevant guideline for trafficking in herbal cannabis is provided for in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329. For quantities between 15,000 to 45,000 grammes, the sentencing band is 66 to 96 months.
In the case of the 1st defendant, the quantity involved was 36,543 grammes of herbal cannabis which, on a mathematical basis, attracts a notional starting point of 7 years and 3 months’ imprisonment.
The 2nd defendant stands convicted of two counts of trafficking in dangerous drugs. Both charges involve the same type of drug, and the facts giving rise to the two offences are closely connected, having occurred on the same day, at the same location, and as part of the same transaction.
In these circumstances, the proper course is to adopt a global approach, taking into account the aggregate quantity of drugs involved in both charges in determining the appropriate starting point. In that process, the court also adheres to the principle of totality.
The aggregated quantities of the two charges, ie the total quantity of the herbal cannabis trafficked by the 2nd defendant, is 77,575 grammes. Under the guideline, trafficking in quantities of 45,000 to 90,000 grammes attracts a starting-point range of 96 to 120 months’ imprisonment after trial. On a mathematical basis, a quantity of 77,575 grammes of herbal cannabis attracts a notional starting point of approximately 9 years and 5 months’ imprisonment.
In passing, the quantity of drugs under Charge 2 attracts a notional starting point of 7 years and 8 months’ imprisonment.
Second step: defendant’s role and culpability
On the facts, I find that both the 1st and 2nd defendant acted as couriers and were arrested in the course of delivering the drugs. The 1st defendant did not possess the key to unlock his suitcases, whilst the 2nd defendant possessed the keys to unlock suitcases carried by him and by the 1st defendant.
Counsel for the 2nd defendant urged this court to accept that the 2nd defendant was not the mastermind. On the evidence before me, I am prepared to find that both the 1st and the 2nd defendants were mere couriers.
As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are for the least culpable of the drug traffickers, namely the courier or storekeeper. As such, there is no enhancement on account of the defendant’s role.
However, the offences involved cross-border trafficking. In the case of Lee Ming Ho, the Court of Appeal stated that the international element, which was formerly treated as a separate and individual aggravating factor, should now 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, when 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 their consequences. Therefore, taking into account this 1st defendant and the 2nd defendant’s actual involvement in the importation of the drug into Hong Kong, that is the international element, I consider that the starting points should be respectively enhanced by 1 year for the 1st defendant and 1½ years for the 2nd defendant.
Third step: placement within the guideline band
Considering the overall role and culpability of the 1st and the 2nd defendants, including the international element, I find that a starting point of 8 years 3 months’ imprisonment for the 1st defendant and 10 years and 11 months’ imprisonment for the 2nd defendant are appropriate.
Fourth step: aggravating factors
I find no aggravating factors beyond those inherent in the offence itself, and those are already reflected in the assessment of role and culpability.
Fifth step: mitigating factors
Both the 1st and the 2nd defendants pleaded guilty at the earliest opportunity, for which they are entitled to the full one-third reduction. As for the personal and family circumstances of the 1st and the 2nd defendants, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug-trafficking cases. Therefore, apart from the guilty plea tendered by both defendants, I find no other mitigating factor.
Sixth step: totality and overall fairness
After the reduction as stated, the final sentence for the 1st and the 2nd defendants is 5 years and 6 months’ imprisonment and 7 years and 3 months’ imprisonment respectively.
I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offence, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the 1st and the 2nd defendants.
1st defendant, you are now sentenced to 5 years and 6 months’ imprisonment. And, 2nd defendant, you are sentenced to a total of 7 years and 3 months’ imprisonment for both Charges 1 and 2.
(Discussion re sentence)
COURT: For Charge 1, the starting point, as I have said, was 7 years and 3 months’ imprisonment, the notional starting point. So I have added 1½ years as a result of the international element to the 1st charge. So after discount of one-third of guilty plea, that would bring the 1st charge to 70 months’ imprisonment. And for the 2nd charge, the notional starting point, as I said, was 7 years and 8 months’ imprisonment. One-third discount would bring us to 61 months’ imprisonment.
So in order to achieve the final sentence of 7 years and 3 months’ imprisonment, 17 months out of Charge 2 be consecutive to the 70 months in Charge 1.