According to the Summary of Facts to which he had admitted, on 8 October 2020, Customs and Excise officers intercepted a parcel at the Hong Kong International Airport and the parcel was an incoming parcel from Germany. Upon inspection, the parcel was found to contain a total of 499 grammes of a solid containing 298 grammes of cocaine.
The estimated street value of the cocaine is about HK$687,123.
And the parcel was sent to the accused’s name and to his address. A controlled delivery was mounted by the customs officers. They tried to deliver the parcel to the accused’s address on 12 October 2020 but in vain because nobody answered the door. So the officer left a notification card at the mail box, referring the consignee to collect the parcel at Chuk Yuen Post Office of Wong Tai Sin.
At about 2.21 pm on 15 October that year, a young woman, Ms Tsoi of 14 years, arrived at the post office to collect the parcel, and she was able to present the notification card, her own identity card and a copy of the accused’s Hong Kong Identity Card for the collection. And according to the CCTV in the post office, it was depicted that the accused entered the post office less than a minute after Ms Tsoi. He was watching Ms Tsoi at the queue from behind, and had at one time even approached Ms Tsoi to talk to her. Later, he went to the office entrance and waited there for Ms Tsoi to collect the parcel.
After the parcel was collected by Ms Tsoi, the two of them left the post office together, and they were intercepted by the customs officers outside the post office. At that time, the accused was leading the way and Ms Tsoi was carrying the parcel.
Investigation revealed that at the material time, Ms Tsoi had a copy of the accused’s Hong Kong Identity Card and a copy of his bank statement on her, that she was asked to collect the parcel for a reward of HK$500, and she was instructed to meet up with the accused at a Wellcome supermarket at Chuk Yuen Plaza at 2 pm.
On the other hand, whilst under caution and when being shown the parcel, the accused acknowledged that the consignee name and address as appeared on the parcel belonged to him. Forensic examination of the accused and Ms Tsoi’s mobile phone revealed no contact history between the two of them.
Ms Tsoi had text exchanges with a contact person by the number of 5986 5287. And on 13 October 2020, this contact person asked Ms Tsoi to go to Chuk Yuen for collection tomorrow. On 15 October that year, this person asked if Ms Tsoi knew the location of a Wellcome supermarket.
The same contact person also had text exchanges with the accused via WhatsApp, and the accused saved his contact number under the name of KFC in his contact book. According to their WhatsApp exchanges, on 13 October, KFC asked the accused to handle the matter tomorrow and the accused told KFC that the post office will be closed tomorrow.
Now, the accused admits that he was unlawfully trafficking in the cocaine contained in the parcel.
The accused was 20 years of age at the time of the offence. He has a criminal conviction for the offence of possession of dangerous drug and was sentenced to the drug addiction treatment centre in November 2020.
At the time of the offence, he lived with his family and he was a student studying at the Hong Kong Community College. And at the same time, he worked as a part-time lifeguard and a part-time waiter in a bar.
And today, through counsel, he has submitted a letter in mitigation. In this letter, the accused stated that because of bad influence so he became a cannabis abuser and eventually a drug trafficker. And he is grateful for the support of his family members and all his friends. The accused indicated that he is remorseful and asks for leniency.
In mitigation, counsel informed this court that the accused committed the offence to alleviate the financial burden faced by his family because his mother was suffering from diabetes and the COVID situation. Counsel said that he committed the offence for a small reward that he had never received. Counsel urged this court to give him the appropriate discount in view of his early plea of guilty.
In respect of the aggravating feature, counsel said there is nothing from the Summary of Facts to indicate that he was aware that the parcel originated from overseas. Therefore he urged this court not to impose any enhancement for the international element.
Counsel rightly pointed out that under section 56A of the Dangerous Drugs Ordinance, a court may, if it thinks fit, pass a sentence that is more severe where a minor has been involved. Counsel said that the accused did not recruit Ms Tsoi nor direct her to attend the post office. Counsel said that his involvement with Ms Tsoi was limited and it would appear that both of them were under the control or direction of another person, hence counsel urged this court not to impose any enhancement under section 56A.
I shall now come to the sentence to be imposed. In sentencing, I have considered the whole circumstances of the case, including the type and the quantity of the drugs involved, the background of the accused and the mitigation advanced on his behalf. I shall also follow the approach enunciated by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290.
Trafficking in dangerous drug is an extremely serious offence. Given the grievousness of the offence, meaningful mitigation apart from a guilty plea is rarely available. The reasons for a person’s involvement in the offence and his personal circumstances have little weight in sentencing unless they are exceptional.
For sentence involving trafficking in cocaine, it has been held that the guidelines laid down for heroin should be applied. According to these guidelines, trafficking in cocaine where the narcotic content ranged between 200 grammes and 400 grammes, a sentence between 12 to 15 years’ imprisonment should be imposed after trial. The accused was involved in the trafficking of 298 grammes of cocaine narcotic. On a pure arithmetic approach, a starting point of just under 13½ years would be appropriate.
The arithmetic approach is appropriate for the courier or storekeeper who are recognised to be at the lowest rank in the trafficking hierarchy. And taking into account the facts of this case and all the circumstances, I am satisfied that his role was no more than a courier. So I will adopt 13 years and 6 months as the starting point for sentence.
In the case of HKSAR v Wasim, CACC 77/2019, the Court of Appeal has said the following involving the international element. That was a case involving the collection of cartons containing cannabis resin imported from India. And in that judgment, the Court of Appeal stated that: For there to be an international element involved in the offence, it must be apparent from the facts alleged against the accused person.
In the present case, there was no admission by the accused that he knew the parcel of drugs was imported from Germany. There was insufficient evidence to show that he knew or must have known the parcel’s origin or that he was involved in the arrangement of importing the drug. The case against the accused is simply that he collected or he was involved in the collection of the parcel, knowing that it contained dangerous drugs. Hence, I take the view that the aggravating factor of an international element is not made out in the offence, and I do not enhance the starting point for the reason of international element.
The accused was 20 years of age at the time of the offence. I accept that he may not be the mastermind and that both he and Ms Tsoi were being used by other persons in trafficking activities.
Section 56A of the Dangerous Drugs Ordinance empowers the court to enhance the sentence of a defendant for trafficking in dangerous drug in situations that, inter alia, involving intentionally or unintentionally employing, hiring, using, persuading and enticing or coercing a minor in the commission of the offence or the avoidance of detection or apprehension of such an offence. In this regard, I have had regard to cases such as HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, also the case of HKSAR v Chan Ka Shing, CACC 64/2011, and the case of HKSAR v Ho Pak Hong [2022] 1 HKLRD 951. I consider that it is appropriate to exercise my discretion to enhance the sentence for this factor.
At the time of the offence, the accused was 20 years of age and Ms Tsoi was merely 14. Having regard to the age of the accused himself and that this is the first time he committed the offence of trafficking, I consider an enhancement of 1 year is appropriate. Therefore the notional sentence after trial should be 14½ years.
The accused pleaded guilty to the offence and is entitled to a one-third discount, and this is the extent of discount he is entitled. The ultimate sentence after the one-third discount is that of 9 years and 8 months’ imprisonment and this is the sentence I impose.