On 9 March 2019, a package arrived by air freight from Germany. When it was examined by Customs and Excise for clearance, it was found to contain 16 boxes of chocolate, all containing yellow crystalline solids. The contents of one box tested positive for MDMA. Subsequently, all 16 boxes tested positive for MDMA.
The parcel was seized and an operation was conducted to deliver the parcel to the recipient at the address stated on the shipping documents. The recipient was the defendant, to be delivered to his home address in Kowloon.
On 21 March 2019, an operation was set up to deliver the parcel by two customs officers posing as postmen. There were another six customs officers hiding nearby in case the delivery was successful. The defendant was at home and as we subsequently know from his WhatsApp and WeChat messages with two other people, he was waiting for that parcel to be delivered.
After he was arrested and cautioned for trafficking in the drugs in the parcel, he denied knowledge of any drugs and explained that he was receiving the parcel on behalf of a friend ‘Ah B’, who had told him it would contain vehicle spare parts. He did not receive any reward as it was a favour.
Subsequently, an examination of his mobile revealed WeChat and WhatsApp messages between the defendant and Ah B as well as Ah B’s wife. A reading of it infers he agreed to take the risk of receiving a parcel for a reward. There were many messages showing how he and the others were very impatient for this delivery. A reading of it infers he had knowledge the parcel would contain drugs.
His home was searched after his arrest and his girlfriend, who was present in the premises, was detained in his bedroom. The exhibits officer found the drugs of Charge 2, the small packet of ‘Ice’, in a small transparent resealable plastic bag hidden under a blanket on his bed. They also found in various places, on his bed, under his pillow, on his bedside table and under his bedside table, various glass pipes or apparatus intended for smoking or inhaling ‘Ice’. The prosecution’s case was that he admitted possession of the ‘Ice’ and those items.
The defendant agreed to assist the Customs and Excise in a controlled delivery operation to lure his friend, who had asked him to receive the parcel, to come to the premises to collect it. There were many exchanges over the course of the afternoon between the defendant, his friend and Ah B’s wife, but ultimately they sent a courier to collect it. An innocent man was initially arrested but released almost immediately.
There were records of the conversations in the controlled delivery operation and there is no doubt the defendant assisted and cooperated with the officer who conducted the attempt to further deliver this parcel.
The defendant’s case, which was rejected by the jury, was that he was deceived by his friend Ah B and his wife, and believed that the parcel from Germany contained an expensive GPS computer for a car. He explained those messages between himself and Ah B and his wife were all innocent. They were not concerned solely with the parcel from Germany and any reference to risk and money had nothing to do with that parcel from Germany.
As for the ‘Ice’ of Count 2, he had no idea where the ‘Ice’ and apparatus for inhaling ‘Ice’ came from. It did not belong to himself or his girlfriend. He was forced to sign a post-recorded statement containing admissions relating to the ‘Ice’ and the items found in his bedroom. There were allegations of inducements, threats, oppression and misconduct.
The Defendant’s Background
The defendant was born and educated in Hong Kong. He is now 34 years old, single and was at the time of his arrest living with his parents. He says he has had previous employment in the construction industry and renovation works, as well as a stint as a bus driver. At the time of his arrest, he was working as a casual renovation worker, earning a thousand dollars a day for approximately 20 days a month.
The defendant had a clear record. In mitigation, Ms Cheung has said all she can say on his behalf. There is not much she can say in mitigation, but does ask for leniency and for the court to exercise its discretion.
Sentencing
Charge 2, Possesses of Dangerous Drugs
I have taken into account, for the purposes of Charge 2, the authority of HKSAR v Mok Cho Tik [2001] 1 HKC 261. There, the Court of Appeal was of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.
The defendant was convicted unanimously by a jury after trial of both charges. In this charge, I take into account the quantity of ‘Ice’ and the fact he had a previous clear record. I will take a starting point of 1 year’s imprisonment for Charge 2.
I have considered the submissions and the facts of this case, as well as the quantity of drugs in Charge 2. I find it appropriate to ultimately make the sentences for both charges concurrent.
Charge 1, Trafficking in Dangerous Drugs
I have taken into account the authority relating to sentencing the offence of trafficking as laid down in HKSAR v Herry Jane Yusuph. I have considered the six-step sentencing approach. In this case, I accept and am satisfied that the defendant was a drug mule in that he was tasked with receiving the parcel from Germany. I am sure he was receiving it for a reward and the parcel would be delivered to or taken by those that paid him. Therefore, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
However, there is an aggravating factor and that is he is involved with the importation of drugs into Hong Kong. There is an international element. I have referred myself to HKSAR v Chung Ping Kun.
The sentencing regime for ‘Ecstasy’ is the same as that for trafficking in ketamine and governed by guidelines laid down in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. But here, the quantity was almost 4,000 grammes.
For larger quantities of the drug, I have referred myself to HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 as well as HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. The latter cases suggest terms of imprisonment for larger quantities of the drug and where the quantity is between 2,000 and 3,000 grammes, no less than 18 to 20 years. Where the quantity is over 3,000 grammes, 20 years or more. The Court of Appeal have said these cases are not laying down guidelines, but rather making it clear the larger the quantity of the drug involved, the more severe the sentence will be.
Having considered the authorities, I find the quantity of ‘Ecstasy’, 3,799 grammes, will attract a starting point of 20 years and 6 months. I have also taken into account the international element and the fact that the drug involved is ‘Ecstasy’. I have considered Ms Cheung’s submissions and authorities she has referred me to. However, with this quantity of drugs, I am satisfied that the level of enhancement for this aggravating factor should be 2 years’ imprisonment. Therefore, the overall starting point for the defendant for Charge 1 is 22 years and 6 months’ imprisonment.
There is one last mitigating factor to consider and that is the assistance he gave to Customs and Excise in the controlled delivery operation after his arrest. He was willing to participate in it and did clearly try his best. I have heard submissions as to what discount I should consider appropriate. It has been suggested I take into account the risk the defendant exposed himself and his family too by assisting. I am urged to consider at least seven per cent.
After careful consideration, I will reduce that starting point by 19 months’ imprisonment to reflect his willingness to assist in that operation. That reflects the discount of just over seven per cent. This reduces the starting point to 20 years and 11 months’ imprisonment.
Lastly, I have taken into account the sixth step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender, to ensure that it is not a crushing sentence. This step is particularly relevant to cases involving multiple offences or where there are several aggravating factors, which means multiple enhancements.
Here, in approaching this last step, I have weighed it against the sentence of 20 years and 11 months as well as the charges involved and mitigation heard. Standing back, it is a significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust. I see no further reason for any further discount.
Accordingly, for Charge 1, the defendant is sentenced to 20 years and 11 months’ imprisonment. For Charge 2, the defendant is sentenced to 1 year’s imprisonment. I order both sentences to be served concurrently.
Therefore, the defendant is sentenced to a total of 20 years and 11 months.