The facts in the case
An inbound postal packet was detected and examined by officers of the Customs & Excise Service in Hong Kong at the Hong Kong International Airport on 2 December 2019. The contents of the parcel showed a positive test for ketamine. What followed was a controlled delivery operation.
The addressee of the parcel was the accused. It was addressed to a residential premises in Tsim Sha Tsui. On 3 December 2019, the Customs officer disguised as a postman, attempted to deliver the parcel to the address which appeared on the parcel. That was unsuccessful and a collection notice was left at the premises.
At just after 2 pm on 4 December 2019, the accused attended at the Tsim Sha Tsui Post Office and produced the mail collection notification to claim the parcel. Customs officers were notified. The accused was asked if he was at the post office to collect the parcel. He replied in the affirmative and confirmed that the particulars on the parcel were correct. He signed the parcel delivery sheet to confirm receipt of the parcel. He left the post office but was soon intercepted by Customs officers. He was arrested and cautioned.
Under caution, he told the officers the parcel was his and that he knew it was dangerous drugs although he did not know what dangerous drug it was. He said “Someone asked me to collect the Parcel and I did not know him. I did not have his contact either”. He told the officers he would receive MYR20,000 for receiving the parcel. He told the officers he was supposed to wait for telephone instructions after collecting the parcel and he had come to Hong Kong for the purpose of collecting the parcel. He later confirmed that the address on the parcel was his address.
Ketamine was analysed and found to be 5.94 kilogrammes of a solid containing 5.06 kilogrammes of ketamine.
At the time of the interception, the estimated street value of the drugs that had been seized in the parcel were valued at something of the order of almost $3.7 million.
The accused was taken before a magistrate, charged with trafficking in a dangerous drug, and that occurred on 5 December 2019. He was remanded in custody and on 23 November 2020, he was committed for sentence to this court following his plea of guilty and the admission of facts which I have just summarised.
Background and mitigation
The accused is a Malaysian man and is the holder of a Malaysian passport. He is 36 years of age. He has no previous conviction in Hong Kong. He is a married man and his wife is unemployed. Before arrest, he worked as a customer services assistant, earning MYR6,000 per month. I am given to understand that that is about HK$11,000.
In submissions in mitigation, Ms Wong for the accused makes the point that the accused is the sole breadwinner of his family and his parents. I am informed and accepted, the parents of the accused are old and are desperately anxious for his return to Malaysia from Hong Kong. Ms Wong makes the point that there is little prospect of his parents coming to Hong Kong to visit him. I have also had a letter from his sister, which comments on his character in a most favourable way. Clearly, the accused is remorseful and he has taken responsibility for his conduct and recognises now that others will have to suffer just as much as he does for his act of monumental stupidity.
Sentencing principles
Trafficking in ketamine - starting point
For many years, the community of Hong Kong has taken a severe view of drug trafficking-particularly in relation to drugs such as ketamine. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who ingest these drugs and in particular ketamine.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that a maximum sentence is life imprisonment and a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs which are the subject of this charge.
In relation to ketamine, the sentencing guidelines for trafficking in ketamine which are outlined in Secretary for Justice v Hii Siew Cheng [2019] 1 HKLRD 1. That case laid down the guidelines for up to 1,000 grammes of ketamine. In HKSAR v Chan Ka Yiu [2018] HKCA 410, the court adopted the approach in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and at para 23 said that:
“Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.”
Accordingly, the court decided that, quote:
“...for trafficking in 2,000 grammes of ketamine narcotic, the starting point should be no less than 18 years’ imprisonment, while for trafficking in 3,000 grammes, the starting point should be no less than 20 years’ imprisonment...”
It further held at para 28 that:
“...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 drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.
Application of sentencing considerations
The central focus of the harm caused by the ingestion of ketamine has been reflected in the established sentencing guidelines. The guidelines for trafficking in this drug and plainly for just over 5 kilogrammes of ketamine is a substantial sentence to be set as a starting point for the analysis. Plainly, that starting point must exceed 20 years, although, as the courts recognise, a sentence based on a geometric progression by reference to drug quantity may (and in this case would) produce real injustice. It was said in Chan Ka Yiu (above) that sentences of over 20 years might be justified for quantities over 3 kilogrammes. In my opinion, there is no perfect answer, but a starting point based on 22 years is appropriate for this case.
The role and culpability of the accused is also an important consideration. What the accused did in this case was to agree to receive the parcel. He did so for money and for no small amount of money. Plainly, his role was simply to do what he was told. In a sense, receiving the parcel, whether it was at a post office (as it turned out in this case) or at his residence (as well might have been) facilitates the movement of the parcel across international lines but to a substantially degree than, for example, an international courier who carries the drugs in a suitcase or swallows capsules of drugs and walks across the border. Such an approach was recognised by the Court of Appeal in HKSAR v Ali Qasim [2020] HKCA 56. In my opinion, the accused in this case can justly be labelled as a courier in the sense that he is a carrier of the drugs but his role was to take possession of the drugs from the actual courier (that is, the post office) and pass them to those who had instructed him. He is a cog in the machine and even to characterise him as a vital cog is perhaps to misunderstand the level of his role. Plainly, he was not a ringleader or organiser. He did come from Malaysia to Hong Kong apparently to carry out his part of the process.
The remaining issue as to starting point is to what extent there should be an enhancement of the sentence to reflect that the accused was a party to the movement of ketamine across international borders. The observations of Macrae VP in Ali Qasim (above) provide assistance in this regard. In that case, the Court of Appeal recognised that a person who collects a parcel in Hong Kong which has been sent from overseas and that parcel contains dangerous drugs should receive an enhancement of sentence to reflect that the accused was a party to the movement of dangerous drugs across international borders. After careful reflection, there will be cases where a substantial enhancement on the basis of him being part of the movement of drugs across international borders might be justified. However, as Macrae VP observes in Ali Qasim (above), two factors come into play: (1) a sense of proportionality as to the role in trafficking the drugs across international borders and, (2) totality - especially where the primary sentence is (as here) a heavy one.
Applying those considerations to this case, I will enhance the sentence by 1 year. That may be merciful, but mercy is never a bad thing. Had this been a courier who himself (or herself) carried this quantity of drugs from another country into Hong Kong, then my calculations would be substantially greater.
It is appropriate to note that the accused was instantly co-operative with the authorities in the sense of making full admissions. I accept that the accused is remorseful and perhaps now accepts the full dimensions of his monumental stupidity.
Resolution
Would the accused please stand up?
Doing the best I can to try and balance the imperative of deterrence and his role and his personal circumstances and the fact that the accused has taken responsibility for his conduct, the starting point for this case must be 23 years and thus the least sentence I can pass upon this man is 15 years and 3 months, and that is the order of the court.