HKSAR v. Jim Ho Lam

HCCC 56/2023

[2024] HKCFI 2365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 56 OF 2023

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REASONS FOR SENTENCE

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1.The defendant was convicted by a jury unanimously of one count of trafficking in dangerous drugs.

2.Particulars are that he, on 16^th February, 2021, outside Tuen Mun Central Post Office, Podium Level, Tuen Mun Government Offices, No.1 Tuen Hi Road, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,503.3 grammes of a solid containing 1,303.5 grammes of ketamine.

SUMMARY OF FACTS

3.On 5^th February 2021, a parcel was intercepted by Customs Officer at the Customs Examination Hall, G/F, Air Mail Centre, 9 Catering Road West, Hong Kong International Airport.

4.The parcel was sent from Germany to Hong Kong, the sender being “Kleve Niederrhein” and the recipient being the defendant.  The shipping documents stated the contents as “Precision Engineered Creatine”, and was addressed to the defendant’s home address in Tuen Mun.

5.Upon inspection and examination, the parcel was found to contain 9 bottles with approximately 2,227 capsules inside, which together make up 1,503.3g of a solid, with a total narcotic content of 1,303.5g of ketamine.

6.On 10^th February 2021, Customs Officers conducted a controlled delivery of the parcel to the defendant’s address as stated on the parcel, but there was no one home to receive the delivery.

7.On 16^th February, Customs Officers brought the parcel to Tuen Mun Central Post Office to await collection.

8.At around 3:10pm, the defendant appeared at the Post Office and requested to collect the parcel, citing the serial number of the parcel.

9.At around 3:15pm, a Customs Officer disguised as a staff member went to the counter to confirm the delivery information with the defendant, who presented his identity card to verify his name is that as stated on the parcel, and confirmed that the address on the parcel was his.

10.The parcel was then handed over to the defendant at around 3:18pm.  The defendant signed on the delivery receipt sheet, took over the parcel and walked out of the post office.  He was almost immediately intercepted by another Customs Officer (PW2), who arrested the defendant for the offence of trafficking in dangerous drugs.

11.Under caution, the defendant said he did not know what was inside the parcel; that a Nam Gor (男哥)  asked him to collect it for him; that the serial number for the parcel was sent to him by Nam Gor via WhatsApp; that he was going to contact Nam Gor and make arrangement for the delivery of the parcel; and that there will be a $5,000 reward for the defendant collecting the parcel.

12.The mobile phone of the defendant was inspected and a number of WhatsApp communications, both text and voice messages, were found, where Nam Gor and the defendant had discussed about the collection of the parcel.  There was, however, no mention of the contents of the parcel, and no mention that it contained anything illegal inside.

13.The defendant elected to give evidence and told the jury that he did not know what was inside the parcel; that he trusted Nam Gor and was just helping out a friend to take delivery of something Nam Gor bought online, since he knew Nam Gor lived in a remote area in Tuen Mun and was not able to have things delivered to him.

14.It was the prosecution’s case that based on the fact that the defendant was promised $5,000 just for collecting a parcel; that the defendant was to meet up with this Nam Gor shortly after the defendant had collected the parcel; and that their meet up point was just about 5 minutes’ walk from the post office, the only reasonable inference that can be drawn is that the defendant knew that there was some kind of dangerous drugs inside the parcel when he took possession of it at the post office.  Since it is the defendant’s own evidence that he had intended to pass on the parcel to another person, the defendant had committed the offence of trafficking in dangerous drugs.

15.The jury by their verdict indicated that they have found that the prosecution has proved to them so that they are sure that the defendant did have the required knowledge.

PREVIOUS CONVICTION

16.The defendant is of previously clear record.

BACKGROUND AND MITIGATION

17.Mr. Ho reminded the court that the defendant was 16 at the time of the commission of the offence, and is still only 20 years old.  The defendant’s parents and uncle continue to be supportive of the defendant.

18.Mr. Ho referred to the background of the defendant as disclosed in his evidence in court, which is that he was a full time student studying Form 3 at Christian Alliance College in Tuen Mun District in 2021.  His father is an accounting clerk, mother a property agent. The defendant’s younger sister was 6 at that time, and they were all living together at a flat owned by the parents in Lam Dei, Tuen Mun.

19.Mr. Ho pointed out that the evidence in this case would support a finding that the defendant was not the mastermind of the trafficking, but a mere courier.  He also pointed out that although the drugs were posted to Hong Kong from Germany, there is no evidence to indicate that the defendant had anything to do with the importation of the drugs, and as such his sentence should not be enhanced for an international element being present.

20.Mr. Ho noted that an arithmetical calculation based on the quantity of ketamine involved should be around 15 years, and invited the court to grant the defendant a small discount based on his clear record.

SENTENCE

21.The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

22.In sentencing, I follow and apply the guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1], as read in conjunction with HKSAR v Lee Ming Ho[2].

Step 1: The applicable guideline tariff bands

23.For 1,303.5g of ketamine, the applicable guideline tariff band is that of “14 to 18 years’ imprisonment”.

Step 2: The defendant’s role and culpability

24.All the evidence point to the fact that the defendant was a mere courier tasked with the collection of the parcel from the post office and then to hand it over to someone else to deal with.

Step 3: The relevant band within the guidelines

25.Based on my finding of the defendant’s role and culpability, and upon the arithmetical application of the tariff band, I adopt a starting point of 15 years and 3 months’ imprisonment.

Step 4: Aggravating factors

26.Although the drugs were imported into Hong Kong, there is no evidence to suggest that the defendant had taken part in the arrangement of their importation.  I find that there are no aggravating factors in the defendant’s commission of the offence.

Step 5: Mitigating factors

27.I have considered whether the defendant’s age at the time of the commission of the offence is a mitigating factor.  In doing so, I have borne in mind the view of the Court of Appeal in the case of HKSAR v Tang King Wa (鄧景樺)  [2023] HKCA 646; CAAR 4/2022 as to the relevance of ‘relative youth’ in serious cases such as this.

28.I find that the defendant cannot be said to be of extreme youth even at the time of the commission of the offence.

29.A proper reading of the WhatsApp communications between the defendant and ‘Nam Gor’ suggests that the defendant was not a simple and naïve 16 year old who knew nothing about the world.  They show the defendant as someone who was able to hold his own against this ‘Nam Gor’, at times trying to placate him by reassuring him that the ‘price’ was going to remain the same, or that there was nothing that can be done even if the parcel was late in arriving.

30.Given the seriousness of the offence, the quantity of drugs involved, and the circumstances of the defendant’s commission of the offence, I find that his relatively young age at the time is not a mitigating factor.

31.For the same reasons, and the need for deterrence when sentencing trafficking cases, I also find that the defendant’s clear record is not a mitigating factor.

32.Having said that, I find that Mr. Ho had conducted the case sensibly on behalf of the defendant.  He had agreed to much of the prosecution’s evidence, and the cross-examination of the prosecution witness was succinct and to the point, leading to a not insignificant saving of court time, even when taking into consideration the relatively straightforward nature of the case.

33.For this, I will exercise my sentencing discretion and give the defendant a 3-month discount, resulting in a notional sentence after trial of 15 years.

Step 6: Totality

34.I find that this is a fair, just and balanced sentence in all the circumstances of the offence and the defendant.

FINAL SENTENCE

35.The defendant was convicted after trial.  He is sentenced to 15 years’ imprisonment.

Mr. Marc CORLETT, Counsel on fiat, for the Prosecution/ HKSAR

Mr. Victor HO, instructed by Messrs. Benjamin Au & Billy Chan, assigned by D.L.A. for the defendant