The defendant is a Malaysian national who arrived in Hong Kong via Macau at the end of October 2019. He then lived in a guesthouse in Chungking Mansions. He was still living there on the date of his arrest.
A parcel had arrived by air from France, allegedly containing dog food and it was examined on 22 November at the Customs Examination Hall of the Air Mail Centre at the Hong Kong International Airport for clearance. It was opened and examined. There were two bags of dog food inside the parcel and in each bag were five transparent plastic bags of white solid substance hidden. It was tested and the result for the white solid substance was positive for ketamine.
The estimated value at that time of this quantity of ketamine was about HK$1 million.
That parcel was seized and an operation was conducted to deliver the parcel to the recipient, addressee Jeremy Lim. An operation was conducted to deliver it to the address as stated on the parcel by a customs officer posing as a postman on 25 November 2019. When the attempt was made to deliver it to the address on the 8th floor of Chungking Mansions there was no answer. A postal card informing the recipient of the failed attempt to deliver was left in the post box or letter box.
The parcel was taken to Tsim Sha Tsui Post Office the following day to see if the recipient would come to collect it. The defendant did not attempt to collect it on that day but did the following day, 27 November. Customs officers were disguised as postmen inside the post office and there were others outside the post office waiting to see if this delivery operation was successful.
The defendant did approach the counter at the post office in the morning with the details of the parcel from France and claimed to be the recipient. He however did not have the postal card left in the letter box nor did he have any proof of address. He did have his passport and the customs came to know that he was a Malaysian national.
It took three attempts for the defendant to produce proof of address and he produced a guesthouse receipt with an address on it that corresponded to the parcel from France. However it was in Admitted Facts that he was not staying at that address but at a different address on a different floor in Chungking Mansions.
It was accepted as proof of address and he signed for that parcel and collected another parcel from the USA. That parcel was also addressed to him, named as Jeremy Lim, with the same address as the parcel from France.
The defendant was intercepted as he stepped out of the post office, arrested and cautioned. He was taken on board a government vehicle and questioned. In response to questions he admitted, amongst several things, that he knew the parcel from France contained drugs but he did not know what type of drugs. He was to be paid $8,000 as a reward for collecting the parcels. He admitted that he created that guesthouse receipt so that he could have a proof of address in order to collect the parcels.
From his phone records, he was clearly communicating with somebody on a Malaysian mobile number. There was communication relating to these parcels and the attempts to collect these parcels.
The defendant’s defence during trial was that he had no knowledge of the drugs inside the parcel from France. The admissions were fabricated by the arresting officer in his notebook. He was collecting the parcels on behalf of a friend. He was in Hong Kong to attend a month-long healthcare product fair. His purpose for coming to Hong Kong was to attend that fair, see Hong Kong and Macau as he had never been before, and visit an action movie director friend.
To his knowledge, the parcels contained healthcare products and pills to sell or exhibit at the fair. They were sent by his friend from Malaysia who he had known for some time and had no reason not to believe him when he told him that the parcels contained such products. Clearly the majority of the jury rejected his case.
The Defendant’s Background
The defendant was born and educated in Malaysia. He is now 29 years old, married, and was working before he came to Hong Kong as a decoration worker and a part-time member of staff at Amway Sales. He has no previous convictions in Hong Kong but that is by the by when this was his first visit to this territory.
In mitigation, Mr Tze has said all he can say on behalf of the defendant. There is not much that can be said in mitigation for an offence of this nature but he does ask for leniency.
I have been referred to by Mr Tze to HKSAR v Chan Ka Yiu, CACC 147/2016, and I have heard his submissions relating to the aggravating factor of an international element in the importation of dangerous drugs into Hong Kong. This aggravating factor will attract an enhancement to the appropriate sentence depending on the total quantity of ketamine.
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 effectively a drug courier or mule in that he was tasked to collect and receive the parcel from France. 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 tariff and the quantity of dangerous drugs involved.
There is no dispute there is an aggravating factor and that he is involved with the importation of drugs into Hong Kong which must be, by definition, an international element.
The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The Court of Appeal in that authority considered a starting point of between 14 and 18 years’ imprisonment appropriate where between 1,000 and 2,000 grammes of ketamine is involved. Mathematically speaking, trafficking in 1.71 kilogrammes or 1,710 grammes will attract a starting point of 16 years and 10 months’ imprisonment. I see no reason to depart from this guideline considering the defendant’s role as a courier or mule in collecting the parcel.
As for the aggravating factor of an international element, posting it from abroad and collecting it in Hong Kong must come under the umbrella of an international element. I have taken that into account as well as the quantity of ketamine. I have considered Mr Tze’s submissions. I am satisfied that the level of enhancement here should be by 1 year. Therefore the overall starting point for this offence is 17 years and 10 months’ imprisonment. There are no other mitigating or aggravating factors to take into account.
Lastly, I have considered the sixth and last step of Herry Jane Yusuph, which is to stand back and observe the overall sentence to ensure that it is fair, balance and just in all the circumstances of the offence and the offender to ensure that it is not a crushing sentence. This last step is particularly relevant to cases involving multiple offences or where there are several aggravating factors which means multiple enhancements.
Here, in approaching this principle I have weighed it against the sentence of 17 years and 10 months. I have weighted it against the drugs involved and mitigation I have 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.
Accordingly, you are sentenced to 17 years and 10 months’ imprisonment for this offence.