COURT: Both defendants pleaded guilty to one count of attempting to traffic in a dangerous drug. On 5 August 2021, outside 169-171 Shau Kei Wan Main Street East, both attempted to unlawfully traffic in a dangerous drug, namely, 2,098 grammes of a tablet containing 30.95 grammes of amphetamine.
Summary of Facts
The Summary of Facts admitted set out how an inbound UPS parcel was examined by Customs and found to contain the drugs of this charge hidden inside some bedsheets. The tablets were tested and the result was positive for amphetamine. The parcel was repacked and prepared for a controlled delivery operation. It was intended to deliver the parcel to the consignee.
The Customs officer disguised as a UPS courier made a first attempt to deliver the parcel to the consignee address, but nobody answered the door or the phone number given.
The following day, UPS received a call purporting to be from the consignee requesting the parcel to be delivered to a different address before lunch on 4 August 2021. The address of the building remained the same, but it was to be delivered to the fifth floor instead of the sixth floor.
The next day, the consignee called UPS again and asked that they call her just before a courier arrived. She was informed as per the instructions of the Customs officer conducting the operation that it would have to be delivered the following day after 2 pm.
On 5 August 2021, Customs officers were positioned around the building and about 4 pm, both defendants were spotted near the entrance of the building talking to each other. They were kept under observation. There were some phone calls between a Customs officer undercover and the consignee about timing of the delivery and whether the parcel could be received by the consignee’s domestic helper. Now, the consignee said her domestic helper would be waiting at the ground floor entrance of the address.
At about 5 pm on the same day, an officer disguised as a UPS courier arrived at the entrance of the building, and the 1st defendant was observed approaching the courier whilst the 2nd defendant walked some distance away but was still visible. The courier asked the 1st defendant to provide her identity card for verification and delivery, but she then began to talk on a mobile in a foreign language. Shortly after that, the 2nd defendant walked back to the 1st defendant and gave her a wallet. She took out an identity card from that wallet and details were recorded before she signed a receipt. As soon as she signed for the parcel and signed the receipt, the 1st defendant was arrested as was the 2nd defendant.
Under caution, the 2nd defendant remained silent, but the 1st defendant said that the parcel belonged to an Anggi who asked her to collect it and give it to her in Tsim Sha Tsui. She would receive $4,000 for carrying out this task. The 1st defendant subsequently agreed to help the Customs try and deliver the parcel to this said person, but the attempt to deliver failed.
In subsequent video-recorded interviews, both the 1st and 2nd defendants denied knowing that the parcel contained drugs. The 1st defendant agreed to collect it on behalf of a person who she also knew as Gisela Cindy, the consignee. The 2nd defendant also admitted agreeing to help the same person collect it for a financial reward.
Mobile phones were seized and incriminating messages were found in them. In particular, the 2nd defendant’s mobile where she was told on the date of delivery and arrest to be careful, pay attention, don’t miss it, and be prepared.
Both defendants admit they knew the parcel contained the dangerous drug and had committed the offence of attempting to traffic in a dangerous drug by acting together in an attempt to collect the parcel.
Mitigation
Both defendants are Indonesian nationals who arrived in Hong Kong to work as foreign domestic helpers. The 1st defendant is divorced with a child in Indonesia. Both, at the time of their arrest, were no longer working as foreign domestic helpers, effectively overstaying in Hong Kong. The 1st and 2nd defendants are now 30 years old and 26 years old respectively. Both had no previous criminal convictions in Hong Kong when arrested, but have subsequently been convicted of overstaying in Hong Kong in July 2022.
I have heard and read full mitigation on behalf of both defendants. All that can be said on their behalf has been set out in mitigation. Their best mitigation is their pleas of guilty. I have taken into account everything said on their behalf. I will also take into account the 1st defendant’s consent to take part in a subsequent controlled delivery operation which, however, was unsuccessful.
Sentencing
I have referred myself to HKSAR v Herry Jane Yusuph, CACC 93/2019, and the six-step approach to sentencing those trafficking in dangerous drugs. The defendants played the role of couriers. Their role was to attempt to collect the parcel as directed by someone else for a financial reward. They were both then to deliver to someone else somewhere else upon instruction. They both agree they were arrested attempting to collect the parcel they knew contained dangerous drugs.
It is part of the Summary of Facts that the parcel arrived from France by air. Any international element proven from the facts can be treated as an aggravating factor to enhance the starting point. I have been referred to relevant and perhaps the most up-to-date authority, HKSAR v Fong Yau Heung [2022] 2 HKLRD 99.
In this case, there were no admissions by either defendant that they knew they were collecting a parcel of drugs that had arrived from France before setting out to meet the courier. Neither of their names were on the parcel. There is no evidence they arranged or facilitated or assisted in the importation of it. There is a WhatsApp message to the 1st defendant’s mobile sent at the very last minute and whilst she and the 2nd defendant must have been waiting for Customs and Excise officers disguised as a courier. That message said the parcel was from France. I have considered the facts and the circumstances surrounding the importation from France, including the defendants’ apparent knowledge or roles, and I do not intend to take this factor into account for the purposes of sentencing.
The drugs here involved are amphetamine. There are no guidelines for trafficking in amphetamine. I have read the expert report prepared by a Dr Chong Yiu-kwan. He made some comparisons about the potency of amphetamine when compared to MDMA, Ecstasy, or methamphetamine, ‘Ice’.
It would appear, and counsel for both the prosecution and the defendants agree, his opinion is that amphetamine and ‘Ice’ were, “roughly equivalent” in terms of psychological, subjective and behavioural effects, with a study showing ‘Ice’ being 1.16 times more potent in subjects’ or takers’ liking. Amphetamine was of a “similar potency” when compared with ‘Ice’ and was more potent than MDMA.
According to the authorities for trafficking, 30.95 grammes of methamphetamine or ‘Ice’ would attract a starting point of 8 years and 5 months’ imprisonment after trial.
The expert is saying that the potency of amphetamine would be somewhere between the equivalent of ‘Ice’ or MDMA, but more similar to ‘Ice’. He also says the acute toxicity of amphetamine is comparable to that of methamphetamine.
After consideration of the expert’s opinion as well as submissions from counsel, I am of the view that the starting point for 30.95 grammes of amphetamine should be akin to trafficking in the similar quantity of ‘Ice’, therefore 8 years and 5 months’ imprisonment, but with a reduction to reflect the fact it is not actually methamphetamine hydrochloride.
I have been referred to the authority of HKSAR v Ngan Ka Chun [2010] 2 HKLRD 190, where such an adjustment to take into account the difference in potency was recognised. Therefore, I find a starting point of 7 years and 2 months appropriate. This is taking into account the study that ‘Ice’ is 1.16 times more potent than amphetamine in some takers’ liking. I have divided the starting point of 8 years and 5 months by 1.16.
Appropriate Discount after Plea
The defendants did not plead guilty at the earliest opportunity and therefore are not entitled to the usual full discount for both. According to the ruling in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the range of discount to be afforded to a defendant when he intends to plead guilty after trial dates have been fixed but before the first day of trial lies up to 20 per cent discount on the first day of trial.
Both the defendants pleaded not guilty at the committal stage and were committed to the Court of First Instance for trial on 7 November 2022.
On 6 March 2023, the 2nd defendant indicated to the court that she intended to plead guilty. By then, a case management hearing and a trial had been set down already.
On 9 August 2023, the 1st defendant indicated to the court that she also intended to plead guilty. After that indication, the dates for a second case management hearing and the trial were vacated. The 1st defendant’s indication of a plea came five months after the 2nd defendant’s.
What is, of course, most relevant is the fact that both were committed to the Court of First Instance for trial and a trial date for both had been set down before an indication of a change of plea.
After considering submissions, I would have afforded the 2nd defendant, who indicated her change of plea first, a 25 per cent discount.
I would have afforded the 1st defendant, who indicated her change of plea some five months after the 2nd defendant, a 22 per cent discount, but I increase it to 25 per cent to reflect the fact she cooperated with the authorities upon her arrest when the 2nd defendant did not. The 2nd defendant, I note, refused to give her password to her mobile phone to the authorities nor did she agree to assist in a further controlled delivery operation.
Therefore, for both the 1st and 2nd defendant, I equally apply a discount of 25 per cent to the starting point of 7 years and 2 months.
The sixth step in the sentencing approach of Herry Jane Yusuph 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. I find the overall terms of imprisonment I will impose fair and balanced sentences under the circumstances and all of the facts.
Accordingly, both the 1st and 2nd defendants are sentenced to 5 years and 4 months’ imprisonment.