COURT: You pleaded guilty, which is to your credit, on 29 March 2021 before Mr Daniel Tang, sitting in the West Kowloon Magistrates’ Court, to one count of attempting to traffic in dangerous drugs and one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The dangerous drugs which you attempted to traffic under Count 1, and it was only an attempt because Customs and Excise had already found them, were 5,401 grammes of cocaine. And under Count 2, you trafficked in the 5.17 grammes of ketamine which, of course, we know represented what was left of a previous haul of ketamine that was found in D26.
The estimated street value of the dangerous drugs that you were receiving that day was $7,129,170.
That is how much those people that roped you into this were going to make when they sold those drugs on for the $10,000, I suspect, reward and the risk that you took.
The Summary of Facts has been read out to you and you have confirmed they represent the basis of your plea.
In essence, what you purported to be doing is that 321 kilogrammes of milk powder was imported into Hong Kong from the Netherlands. Upon inspection by Customs and Excise, they were found to contain the 5,401 grammes of cocaine that falls to be part of Count 1. Investigation by them found that they were ultimately consigned to you and a controlled delivery took place, in which Customs and Excise delivered them to you on 30 May 2020. As I have just said, the ketamine was just the remains of a previous delivery.
On arrest, you said you were collecting the goods for a friend for a reward of $10,000. You agreed at that time to assist in a controlled delivery yourself, which was to your credit. When the Customs and Excise officers entered the storage room you were renting, they found the dangerous drugs, which are the subject of Count 2, inside some further cartons of milk powder which were in that room. We have a number of photographs of all of the boxes of milk powder.
In your later video-recorded interview, you said that you had been asked by someone to rent the warehouse where the milk powder was found, which is the subject of Count 2. This was paid for by that person whom you did not name. You accepted that over a period of time, you received different products including shampoo and milk powder, which you stored in the rented room. And whilst you received no reward for receiving and storing the shampoo, you said that you did previously receive a reward of $10,000 for receiving and storing the milk powder which had been found in the storeroom upon your arrest. There had therefore been two pallets of milk powder at that time. Your function was simply to receive the goods and then hand over access to an unnamed third party.
However, the digital evidence, and that is the evidence that comes from your phone, indicates that you were not ignorant of the content of the first batch of milk powder and that, in fact, you had taken photos of them, which you had found inside the containers. You therefore knew exactly what you were doing and the role you were to play when you agreed to receive the second batch of milk powder, which is the subject of Count 1. You knew that what you still possessed in the storeroom were dangerous drugs and that they were clearly going to be supplied to others.
As Mr Mak has said, you are, just 23 years of age and you were only 21 at the time of this offending. You were of good character. You are single and were living with your grandparents before your arrest. I have noticed that you first started work at 16 years of age and you were working as a warehouseman earning $12,000 a month, but that you had been laid off due to COVID which was the trigger for why you behaved as you did.
Mr Mak tells the court that you had always been employed and you had contributed towards the household expenses of your grandparents, who are elderly and retired. The loss of your job before this offending placed you under pressure to find another job, which you tried to do but you were not lucky. As a consequence, you succumbed to an offer to traffic in dangerous drugs from a classmate whom you had known for several years, and who you say put you in touch with others, but played no part in these events himself.
As Mr Mak has suggested to me in the papers, this was an immature and impulsive action, which will cost you the better part of your working life. The young man who introduced you to this event should feel ashamed of himself because he has taken away the next few years of your life.
Under Count 1, for attempting to traffic in 5,401 grammes of cocaine, under the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 and also HKSAR v Abdallah Anwar Abbas[2009] 2 HKLRD 437, the starting point for sentence after trial falls within the range of 26 to 30 years for between 4,000 and 15,000 grammes of cocaine. The starting point after trial, therefore, for 5,401 grammes of cocaine in all the circumstances of this case, which includes the role you played and which both counsel agree as correct, is 26 years and 6 months.
Under Count 2, for trafficking in 5.17 grammes of cocaine, the relevant sentencing guidelines can be found in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. The starting point for sentence for trafficking in dangerous drugs for that ketamine will be 3 years.
There is also the fact that both sets of drugs were imported from abroad, and that is the sentencing guideline that I find under Abdallah that I have just mentioned. For the importation of those drugs, which is an aggravating factor, you will receive an additional sentence of 2 years.
Now, you will of course receive a full one-third discount for your plea of guilty to Count 1 and Count 2 at the very earliest opportunity. Mr Mak points out that you sought to provide assistance at the time of your arrest in the form of a controlled delivery, which we often seek to ask arrested persons to assist with. But that was ultimately unfortunately unsuccessful. But, nevertheless, it shows that you had made a genuine attempt to assist. And as was stated in HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309, a court has a discretion to extend the discount afforded to a defendant beyond the usual one-third for an early plea where there is a genuine attempt to assist the authorities even if that assistance is limited and unfruitful.
In that respect, as was said by Barnes J in HKSAR v Wong Keat Jeang, HCCC 410/2019, a 40 per cent discount for assistance should be the high watermark of any such discount and the appropriate discount between the one-third and the 40 per cent will vary depending upon the particular circumstances of the case.
Upon arrest, you agreed to take part in a controlled delivery. Mr Mak submits that you should be given an appropriate increased discount from your sentence for that participation even though it was unsuccessful. On the other hand, I do note that you were not completely full and frank with Customs and Excise at that stage and there have been gaps and anomalies in the provision of information which suggests that the information you have provided has not been the whole truth. I therefore consider that you should be given an increased discount but not one as high as 40 per cent.
There is also the issue of totality, which again Mr Mak has addressed me on. You were and are still very young and no doubt extremely foolish. I very much doubt you had realised the full risk you placed yourself in by engaging in international drug-smuggling of this nature. But you did know what you were doing and you were a willing participant in drug trafficking for gain.
You will receive a full 1/3 discount for your very sensible plea of guilty at the first opportunity plus a further discount for your assistance. I consider the appropriate discount, in my discretion, in all the circumstances of the case should be one of 37 per cent in total.
The sentence I must pass on Count 1, which includes the enhancement for the importation of a further 2 years, after discount of 37 per cent, will therefore be one of 17 years and 11 months’ imprisonment.
On Count 2, the starting point was 3 years. I will not add any extra for the importation of the ketamine, which means that with a discount of 37 per cent, you will go to prison for 1 year and 10 months. That sentence will run concurrently with the sentence you must serve on Count 1.
You will therefore go to prison for a total term of years of 17 years and 11 months.