In summary, the facts of this case are that on 5 June 2020, during a random check at the Customs Examination Hall of Air Mail Centre of the Hong Kong International Airport, the Customs officers selected a parcel from Germany for examination. Later, the Customs officer made a controlled delivery to the consignee’s address but no one received the parcel. Later, on 24 June 2020, a middle-aged male approached the Kwai Chung Post Office, attempted to collect the parcel but was directed to come back on 29 June 2020.
On 29 June, at about 1600 hours, the defendant arrived at Kwai Chung Post Office, presenting an authorisation letter, a copy ID card of the consignee and an address proof to collect the parcel. After she collected the parcel, at 1611 hours, the defendant was arrested outside the post office.
Upon her arrest and under caution, she said she did not know what was contained inside the parcel, that she collected it for a man called Ah Fai and he asked her to collect it because she owed him $2,000. She said that after she collected the postal parcel, she would wait for Ah Fai to contact her. The defendant’s video-recorded interview on 30 June 2020 was not challenged and the prosecution admitted it.
The defendant elected to give evidence in court and said she overheard Ah Fai being pressed to collect a parcel, and that Ah Fai said that it contained COVID-19 vaccines and that it would bring a lot of money. She said she offered to help Ah Fai in order to return a favour. She went there to collect the parcel because Ah Fai told her that he had a fever or was unwell or was not free. By the jury’s verdict, they must have rejected the defendant’s evidence and found that she knew what was contained inside the parcel was a dangerous drug.
On the jury’s finding, the defendant was clearly trafficking in these drugs, the quantity of which are set out in the charge, and the value in June 2020 was $156,722. The facts of the case involved the defendant picking up a parcel containing ‘Ecstasy’ from Kwai Chung Post Office and the subsequent delivery of it to others.
As for the defendant’s personal background, she was born in December 1953 and is 68 years old. The defendant was born in the mainland and came to Hong Kong when she was very young. She is educated up to Primary 6, her husband passed away over 30 years ago, and have two children aged 35 and 42 years old. She worked as an odd-job cleaning worker and/or restaurant attendant or waitress before this incident.
The defendant’s criminal record is admitted. She has a total of 20 previous convictions, eight of which are related to drugs, out of which one is trafficking in a dangerous drug in 1985 for which she was sentenced to 12 months’ imprisonment. Her seven other drug-related convictions occurred between 1974 and 1992. The most recent drug-related conviction was in 2001. She was fined $300 for possession of dangerous drugs. The conviction for trafficking was some 35 years ago. Having regard to the case of HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, at paragraph 17, I do not propose to take that into account against the defendant.
Now, in the case of HKSAR v Wasim, CACC 77/2019, [2020] 2 HKLRD 1139 the case involved the collection of cartons containing cannabis resin imported from India. The Court of Appeal has said the following relating to international element:
“For there to be an international element involved in the offence, it must be apparent from the facts alleged against the accused person.”
Mr Kwan in mitigation urges this court not to impose any enhancement for the international element. He said that there is nothing from the evidence to indicate she was aware that the parcel originated from overseas.
In the present case, there was no admission by the defendant that she knew the parcel was imported from Germany. I take the view that the aggravating factor of an international element is not made up in the offence, and I do not enhance the starting point for the reason of international element.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the drugs involved, the background of the defendant and the mitigation put forward on her behalf by Mr Kwan. The sentencing guideline for trafficking in ‘Ecstasy’ in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for 300 to 600 grammes, it would attract a term of 9 to 12 years’ imprisonment.
In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal set out a six-step approach in assessing the appropriate sentence in offences of this nature.
Basing on the quantity of the narcotics involved, the starting point for trafficking in 579 grammes of ‘Ecstasy’ is 11 years and 9 months’ imprisonment.
It is obvious that the defendant is a courier. There is no reason in the present case to depart from these tariffs. The Court of Appeal has stated time and again that trafficking in dangerous drugs is a very serious offence, and the element of general deterrence is of paramount importance. Individual mitigation tends for policy reasons to count very little, a point made by the Court of Appeal in Leung Wai Man, CACC 24/2007, at [11].
Mr Kwan urges me to take into account the defendant’s age, her co-operative manner in the conduct of her defence case, thus saving court’s time. I will exercise my discretion to give a discount of 3 months.
I see no other mitigating factors warranting further discount in this case.