HKSAR v. Akemi Pattarapong

DCCC 909/2024

[2024] HKDC 2161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 909 OF 2024

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REASONS FOR SENTENCE

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Introduction

1.D1 and D2 were jointly charged with one count of trafficking in 1,987 grammes[1] of cannabis in herbal form at the Hong Kong International Airport, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.D1 pleaded guilty to the amended charge and I found him guilty as charged after he admitted the Summary of Facts.

3.I now deal with the sentence of D1 only.

Facts Admitted

4.On 19 January 2024 at about 1935 hours, D1 who had arrived in Hong Kong from Bangkok, was selected for Customs clearance at the Green Channel (Nothing to Declare).

5.D1 was found to have a blue suitcase checked-in under his D1’s name (“the Blue Suitcase”)  a black travel bag checked­in under the name of M/CHUENJITE Khulchaya (“CHUENJITE”)  (“the Black Bag”)  and three pieces of hand-carry baggage.

6.Upon examination, suspected cannabis buds concealed in six metal Cocoa cans camouflaged as food items were found inside the Blue Suitcase.

7.Upon arrest and under caution, D1 said, inter alia, that, his friend travelling with him gave him the cans at 1pm at Bangkok airport, as the weight of his friend's baggage exceeded the limit.

8.Later at around 2113 hours on the same day, CHUENJITE (a transgender who looks like a female)  was refused landing. Examination on his luggage found no irregularities. CHUENJITE’s name was found to be similar to the tag on the Black Bag collected by D1.

9.The Black Bag was opened in the presence of D1 and CHUENJITE and inside 11 metal cans camouflaged as food items containing suspected cannabis buds were found.

10.The suspected cannabis buds turned out to be 717 grammes of cannabis in herbal form in the Blue Suitcase and 1.27 kilogrammes of cannabis in herbal form in the Black Bag.

11.Under caution and in a subsequent interview D1 admitted, inter alia, that

(a)  The Black Bag belonged to the friend travelling together with him. CHUENJITE was the friend travelling with him to Hong Kong. The snacks inside the Black Bag belonged to D1.

(b)  D1 arrived at the Bangkok airport and met CHUENJITE at around 1pm. CHUENJITE waited for D1 at the check-in counter.

(c)  The Blue Suitcase belonged to D1 and he packed it by himself before arriving at the airport.

12.CCTV footages of the Bangkok International Airport clearly captured D1 had been carrying the Blue Suitcase and the Black Bag to the baggage check-in area. It was D1 who checked in the Blue Suitcase and the Black Bag at the check-in counter.

13.The estimated street value of the cannabis was HK$395,413.

Criminal Record

14.D1 has a clear criminal record in Hong Kong.

Mitigation put forward

15.D1 is now almost 28 years of age, single, born in a small town in Thailand on 23 January 1997 and has been living in Chiang Mai alone after he went to university there in 2018. His parents stayed in their hometown about 500 kilometers away.

16.D1 obtained a business degree in 2022 and has been running a ticketing agency in Chiang Mai with his partners from 2020 when they were still in college. He earned about HK$20,000 a month prior to the present offence.

17.For the commission of the offence, it is submitted that the subject cannabis was brought to Hong Kong for a friend. D1 did not do it for monetary gain. It is submitted that D1 erroneously thought, that, like Thailand, it is lawful for people to smoke cannabis in Hong Kong.

18.D1 has been kept in custody since his arrest. It is submitted that the court may consider imposing a sentence which would have allowed him to be released and return home either immediately or very shortly from now.

Sentencing considerations

19.I have carefully considered everything said on behalf of D1 by Mr Wong who refers the court to a number of authorities, including HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 regarding the sentencing and discounts to be given in cases of trafficking in dangerous drugs.

20.Needless to say, trafficking in a dangerous drug is a very serious offence. The Court of Appeal in Hong Kong has laid down clear sentencing guidelines in respect of this kind of offence. In any event, the Court of Appeal has most recently urged that the sentencing of trafficking cases is not a purely mathematical exercise. One is to apply these guidelines in light of the six step approach set out in the Herry Jane Yusuph. The 6 Steps in the Herry Jane Yusuph approach may be summarized as follows: Step 1 (identifying the relevant guideline band); Step 2 (assessing the role and culpability of the defendant); Step 3 (identifying the starting point); Step 4 (any aggravating factors); Step 5 (mitigating factors); and Step 6 (fixing an overall sentence that is fair, just and balanced). I bear that in mind and adopt that approach.

21.Mr Wong rightly points out that the guidelines for trafficking in cannabis have been revised in Nguyen Thang Loi and the guideline for both cannabis resin and cannabis in herbal form is the same.

22.Given that the present case involved 1,987 grammes of cannabis in herbal form, the relevant guideline band should be the one where the quantity of cannabis in herbal form is under 2,000 grammes sentence after trial is up to 16 months’ imprisonment.

23.I agree with the submission made by Mr Wong that on the evidence before the court, there is nothing to indicate that D1 had any role other than that of a courier.

24.Given that the amount of cannabis in herbal form involved is very close to the top end of the band, I adopt a starting point of 16 months’ imprisonment.

25.The importation of herbal cannabis into Hong Kong from Bangkok adds an international element to the offence and is an aggravating feature of sentence. For this reason, I enhance the starting point by 3 months to 19 months’ imprisonment.

26.I reduce that by the customary one-third to reflect D1’s timely plea. His sentence, after rounding down to the nearest month, is reduced to 12 months.

27.Therefore, D1 is sentenced to 12 months’ imprisonment.