The defendant was 21 years old at the time of this offence and had a clear record. He was born and brought up in Hong Kong in an intact family, the youngest of three children. At the time of his arrest, he was living at home with his family. Of course, they are all now distraught and bereft he is in this position.
There is not much that can be said on his behalf by Ms Crebbin by way of meaningful mitigation as is usually the case with an offence this serious. She has said all she can say and asks for as much leniency as is possible.
The drugs were found when the Customs and Excise Department examined a consignment of 28 boxes that had arrived from France. A driver from a logistics company bearing the airway bills arrived at the airport to collect them. The driver was arrested when the drugs were found in three of the 28 boxes. He had no knowledge of the contents and was employed as a driver.
He agreed to participate in a controlled delivery operation to the recipient of the consignment, which was the defendant. He had details of the defendant’s name and mobile number. The plan was that he would have delivered them to the recipient the following morning, 27 November.
A Customs and Excise officer was arranged to drive the lorry disguised a driver and had other team members hidden in and around that car park waiting for the recipient, the defendant, to arrive as arranged with the driver earlier that morning.
After the defendant arrived, having been driven there by his friend in a black van, he spoke to that customs officer disguised as a driver, looked at the consignment of boxes to be collected and signed the acknowledgement receipt. Once he signed, there was an attempt to take possession, so the operation turned overt and he was arrested and cautioned.
Under caution, he denied all knowledge of the drugs. He was told he was collecting a consignment of decorations and had no idea where they were to be delivered to. He was asked to collect them by someone he did not know nor had met except online playing online games.
He could not participate in continuing the controlled delivery operation because he said he had no caller display for that person. When he proffered that explanation to the arresting officer, quite naturally that customs officer asked to see the contents of his phone to verify this, but the defendant refused. Later, customs officers were able to access his phones and the caller display of the person, ‘Chi Tat’, the defendant had been communicating with on both of his mobiles, was visible.
An expert witness, an expert in drug slang and drug jargon analysed the messages and the phraseology used between the defendant and Chitat over the course of several days up to his arrest. He gave evidence of drug jargon used between them on several days relating to drug packaging and the cost of drug packaging but also specifically relating to the collection of these boxes on the date of the defendant’s arrest. It was referred to using jargon that meant it was a drugs transaction or delivery.
The defence put forward was that the defendant had no knowledge and was acting on the belief that he was collecting decorations. The majority of the jury obviously rejected his defence and was sure on the prosecution’s evidence that he knew he was attempting to collect boxes containing dangerous drugs.
Sentencing
The drug, ketamine, is an evil scourge on Hong Kong society. The damage it does in particular to a user’s physical health is irreversible. As users tend to be young people, their lives are ruined even if they are able to stop. A heavy use of ketamine leads to organ damage and even drug-induced psychosis, which can plague users for life.
I have taken into account the latest authority relating to sentence in the offence of trafficking as laid down in HKSAR v Herry Jane Yusuph [2020] HKCA 974. I have considered the six-step sentencing approach taken from that authority. In this case, I accept and am satisfied that the defendant can be categorised as a drug mule in that he was tasked with collecting boxes containing ketamine from a driver in a factory building in Kwun Tong. I am sure he was receiving it for a reward and the parcel would be delivered to or according to directions from those that paid him.
In reality, there are different degrees of culpability even for couriers or drug mules. However, in this case, and looking at the evidence of the conversations between himself and Chi Tat, the defendant’s actions clearly put him squarely in the role of a drug mule and courier. Therefore, according to that authority, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
Those boxes including the three that contained this quantity of ketamine were sent from France by airmail. It can be an aggravating factor to take into account where trafficking involves an international element, such as importation of drugs into the territory, but here I am satisfied that there is no evidence from the conversations recorded in the defendant’s mobile phones that he knew the goods were coming from abroad. The prosecution is of the same view and does not advocate an enhancement of the starting point for this possible aggravating factor.
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. However, here the quantity is 21.94 kilogrammes of a solid containing 18.73 kilogrammes of ketamine. For such a large quantity of the drug, I have referred myself to HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 where the Court of Appeal endorsed the rationale behind Sin Chung Kin and reaffirmed the analysis in that authority.
In Sin Chung Kin, the court determined that for trafficking in 2,000 grammes of ketamine, the starting point should be no less than 18 years’ imprisonment. For trafficking in 3,000 grammes, the starting point should be no less than 20 years’ imprisonment. If there is more than 3,000 grammes involved, the starting point will exceed 20 years and then becomes at the discretion of the sentencing court. The Court of Appeal have said these cases are not laying down guidelines but rather making it clear that the larger the quantity of the drug involved, the more severe the sentence will be.
Here, what is clear is that there is so much ketamine in this case that the starting point can no longer be determined by the quantity involved. 3 kilogrammes of this drug will attract a 20-year starting point, so to apply any mathematical calculation to 18.73 kilogrammes would only lead to a crushing and excessive sentence. In other words, the upward adjustment over 20 years cannot be mathematically proportional to the increase in quantity.
Having considered the authorities, the facts of the case, the defendant’s role, the quantity of drugs and everything said in mitigation, I find the huge amount of ketamine here, 18.73 kilogrammes or 18,730 grammes, will attract a starting point of 25 years’ imprisonment.
Lastly, I have taken into account the sixth and final 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 would be particularly relevant to cases involving multiple offences or where there are several aggravating factors, which means multiple enhancements.
Here, there are no other aggravating factors that enhance the starting point. In approaching this principle, I have weighed it against the sentence of 25 years’ imprisonment, the quantity of drugs and the facts of the case, standing back, it is a very significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, the defendant is sentenced to 25 years’ imprisonment.