He is committed to this court for sentence.
Facts Admitted
On 14 March 2020 at about 2210 hours, the defendant, a Malaysian passport holder, was stopped and searched by the Customs and Excise officers at the green channel of Customs Arrival Hall A, Passenger Terminal Building 1 of the Hong Kong International Airport when he arrived in Hong Kong from Kuala Lumpur, Malaysia.
Inside a concealed compartment in the check-in suitcase of the defendant 4 carbon paper packets were found. Inside one of these packets, there were 2 transparent plastic bags, each containing some white crystalline solid which yielded positive reaction to methamphetamine on narcotics tests. The 4 packets contained a total of 13 transparent plastic bags.
When being arrested and cautioned for the offence of trafficking in a dangerous drug, the defendant admitted that the packet belonged to him but he did not know what was inside. He had been told by somebody in Malaysia to bring it to some unknown person in a hotel in Kimberley Road in Hong Kong for a reward of 4,000 Ringgits which is equivalent to about HK$7,250.
In a preliminary inquiry under caution, the defendant said he had been given the suitcase in Kuala Lumpur by 2 males, one of whom was named Alan. He had been told it contained souvenirs and somebody would contact him to collect it after he had arrived at the hotel in Hong Kong. His reward would be 12,000 Ringgits, which was about HK$21,800. He did not know the whereabouts of Alan.
The defendant refused to answer the questions in the video-recorded interview subsequently conducted.
The 13 transparent plastic bags contained a total of 2.96 kilogrammes of a crystalline solid of pure methamphetamine hydrochloride which had a street value of $1,861,840 in March 2020.
Criminal Record
The defendant has a clear criminal record in Hong Kong.
Mitigation
The defendant was born in Malaysia and is now aged 36. He is married and has 2 sons aged six and three. He received education up to Secondary 4 in Malaysia and had worked as a promoter for TV shopping and in sales. Before coming to Hong Kong, he worked as a masseur in the massage parlour owned by his family. The income of both jobs were modest.
The defendant’s father who is aged 71 and the defendant’s brother are both in poor health. The defendant is regarded as the primary breadwinner of the family.
The counsel for the defendant, Mr Sherry, tells the court that according to the sentencing tariffs, the amount of dangerous drug the defendant brought into Hong Kong falls within the range of 1,200 to 4,000 grammes, attracting a term of imprisonment of 23 to 26 years. He asks the court not to adopt a strict mathematical calculation in determining the sentence. He reiterates that the defendant was only a low-level courier taking no part in organising the drug transaction and that the court is entitled to adopt a low starting point, citing the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 in support.
Mr Sherry urges the court to adopt a starting point nearer to 23 years imprisonment. He accepts, however, that the sentence may be enhanced by 2 years because of the international element involved.
Sentence
As rightly pointed out by Mr Sherry, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking in a quantity of 1,200 grammes to 4,000 grammes of methamphetamine hydrochloride, commonly called ‘Ice’, the starting point is 23 to 26 years imprisonment.
The amount of Ice involved in the present case is 2,960 grammes. The starting point according to the sentencing guidelines is therefore about 24 years 10 months imprisonment.
Mr Sherry fairly and rightly concedes that there is not much mitigation on the part of the defendant apart from his guilty plea. Indeed, in a case of such serious nature, the clear record of the defendant does not constitute a valid ground for mitigation. He has committed the offence for quick money to alleviate the poverty of his family and this, of course, cannot be used as an excuse to bring the Ice into Hong Kong.
The court accepts that the defendant played only the role of a courier and the court also agrees with Mr Sherry that sentencing is not a strict mathematical calculation but an art. It is, however, important in the interest of justice that the court should adopt a consistent approach in sentencing.
The court has much sympathy for the defendant. As rightly pointed out by Mr Sherry, he will not have the chance to see his children growing up. The court, however, sees no reason to depart from the sentencing guidelines, thus adopting 24 years 10 months imprisonment as the basic starting point.
The Ice had been taken into Hong Kong from Malaysia by the defendant, thus involving an international element which according to Mr Sherry may necessitate the starting point to be enhanced by 2 years.
After considering the case of HKSAR v Chung Ping Kun, CACC 85/2014, and other similar cases, the court enhances the starting point to 26 years 10 months imprisonment.