COURT: The defendant pleaded guilty to one count of conspiracy to traffic in a dangerous drug in the Eastern Magistrates’ Court on 1 February 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the amended Summary of Facts before me.
The charge covers a period of about 18 days between 5 and 22 January 2022, during which he is alleged to have conspired together with other persons unknown to traffic in dangerous drugs, namely 104,012 grammes of solid in the form of a block containing 82,901 grammes of cocaine.
The Facts
On 31 December 2021, CMA CGM (Hong Kong) Limited “CMA”, a container shipping company, received notification that a container numbered TRIU6640374 had arrived Hong Kong from Suriname, South America. The container was a reefer container declared to contain 166 boxes of frozen small meat and 344 boxes of frozen belly.
On 4 January 2022, CMA notified the consignee of the container via email that the container had arrived.
On 5 January 2022, the Customs issued a notice to CMA to restrain the container. CMA then notified the consignee of the notice and requested the consignee to contact the Customs to provide the necessary documents. An agent later attended the office of CMA and submitted a number of documents, including a “Declaration for shipment not subject to import licensing requirement/shipping without controlled hazardous waste”, in which the defendant was named as the contact person.
On 10 January 2022, the Customs conducted cargo examination on the container and found 104 packets, in the form of blocks, containing a total of 104,012 grammes of a solid containing 82,901 grammes of cocaine in the refrigeration unit of the container.
The Customs thereafter conducted a controlled delivery operation with the CMA. On 13 January 2022, at around 2pm, the defendant visited the office of CMA claiming to be the agent handling the container and paid a godown charge to retrieve the container. CMA then issued a “Container Release Voucher” to the defendant.
At around 6.55pm the same day, a tractor towed the container to a container yard managed by Hop Lik Container Services Limited in Sheung Shui and the container was then stored there. The defendant was named as representative of the consignee in the storage agreement entered into between the consignee and Hop Lik.
The estimated street value of the cocaine seized, ie 82,901 grammes of cocaine, is HK$91,114,512.
On 24 January 2022, the defendant was arrested by the Customs at his residence.
In a subsequent video-recorded interview, the defendant admitted that:
(1) On 12 January 2022, a WhatsApp message was sent to him which reads, “Wai Chai, the container will probably be ready to be collected tomorrow, you may have to work tomorrow because it is unknown whether the container can only collected (sic) personally by you, so you prepare for it tomorrow, may you (sic) have to work, get Ready, thank you.”
(2) Following the message, he sent out an audio message via WhatsApp that reads, “the most critical part is when
money could be collected after clearing customs and getting things done, I am so poor and nearly starving, and the other side has not made payment”.
In the defendant’s four mobile phones, the following was further revealed:
(1) The shipping documents for the container.
(2) On 13 January, the defendant sent a photograph of CMA and notified another person via WhatsApp that he was dealing with the documentation.
(3) On 14 January 2022, the defendant was told via WhatsApp that someone from the Customs might contact him regarding the container; and
(4) Via WhatsApp, the defendant urged the payment of his reward of HK$38,000 for the job pertaining to the container.
At the end of the amended Summary of Facts, the defendant now admits and accepts that at all material times he conspired with other persons unknown to traffic in the cocaine seized in the container, knowing that it contained dangerous drug.
Background and Mitigation
The defendant was 30 years old at the time of the offence and is now 31 years old. He lives alone. The defendant was previously convicted of possession of dangerous drug on 5 August 2022.
In mitigation, the defendant had made a guilty plea at the earliest available opportunity. Mr Yip expressed that the defendant was genuinely remorseful and prays for a lenient sentence. Mr Yip also pointed out that the drug was not brought into Hong Kong by the defendant and the defendant was not the mastermind but only a courier for a reward.
I have read the mitigation letters written by the defendant and his parents. The defendant expressed remorse and explained that he took the wrong path for quick money because of his financial difficulties and the need to support his family. The defendant’s parents also ask for leniency on behalf of the defendant.
Considerations of sentence
The leading modern sentencing approach in trafficking cases is set out by the Court of Appeal in a trilogy of cases:
HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Lee Ming Ho [2024] HKCA 150; [2024] 1 HKLRD 1186 and HKSAR v Raman Kapusamy [2024] 2 HKLRD 955. I will follow the six-step sentencing approach set out in Yusuph.
Step 1 is to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned. The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLR 370, as modified in Abdallah [2009] 2 HKLRD 437. The quantity of narcotics involved in this case is well over 15,000 grammes, taking this offence outside the upper level of current guideline sentences and into the realm of sentences being at the sentencer’s discretion, and beyond a starting point of 30 years’ imprisonment.
The prevailing sentencing limit for dealing with the trafficking in very large quantities of dangerous drugs is 35 years’ imprisonment after trial (see HKSAR v Sum Ka Wa [2024] HKCA 760 at paragraph 26 per Macrae ACJHC).
The Court of Appeal observed that there was only outlier, being HKSAR v Rivas & Others HCCC 191/2012, 13 May 2013, where, in respect of three (out of six) defendants, starting points of 37 and 38 years’ imprisonment were taken by a judge at first instance for trafficking in 422.5 kilogrammes of cocaine narcotic, with a street value of some US$65 million.
Given the quantity of cocaine involved in the present case which substantially exceeds the current level of 15,000 grammes in the realm of discretionary sentencing, I will adopt 32 years’ imprisonment as the starting point for 82,901 grammes of cocaine.
Steps 2 and 3 involve assessing the defendant’s role and culpability based upon the evidence and where within the guidelines the defendant should lie. Herry Jane Yusuph recognises that the role of an accused in aspects of trafficking can vary significantly. Macrae VP states at paragraph 59:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
The evidence before me suggests the defendant is responsible for receiving and storing the consignment of drugs on the instruction of others, and it is the participation of the
defendant in the conspiracy to which he pleaded guilty that led to the trafficking of the cocaine in question.
I find that the role of the defendant in the conspiracy was that of a courier and a storekeeper. I also take into account the length of the conspiracy which was about 15 days, and the reward which the defendant would receive.
There is an international element present on the evidence, since the container had been sent to Hong Kong from abroad, which the defendant must have known when he collected it. As for his knowledge that it was coming from abroad, it was obvious from the fact that it was a delivery from a container shipping company and his WhatsApp communications which show that he sent a photograph of the CMA and notifying another person that he was dealing with the documentation. The defendant also said in his audio message that it involves “clearing customs and getting things done”.
Apart from the Amended Summary of Facts, I have also been provided by the prosecution with the WhatsApp communications in relation to the images of the shipping documents found on the album of one of the phones seized from the defendant.
The defendant further visited the office of CMA on 13 January 2022 claiming to be the agent handling the container and paid a godown charge for the container for the purpose of retrieving it at the container terminal, which was also consistent with his understanding that it had come from abroad.
In Lee Ming Ho, the Court of Appeal stated at paragraph 34 that the international element is itself capable of taking a number of different forms and may not therefore lend itself to a standard or uniform enhancement (see also Raman Kapusamy at paragraph 60). The international element is now generally considered as part of the assessment of the offender’s role and culpability. That said, the court has to bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes greater harm to the community (see Lee Ming Ho at paragraph 74).
It was made clear in Raman Kapusamy, at paragraphs 58 and 68 that sentencing judges should remember, in relation to the international element, the greater the quantity, the more harm is caused by that quantity entering Hong Kong and being disseminated on our streets. This normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.
The present case involved an enormous quantities of cocaine with a very substantial value of HK$91,114,512. The defendant played a significant role in collecting the container which contained drugs and facilitated the storage of this cocaine. Taking into account the defendant’s role and involvement, I consider that it merited an enhanced starting point of 33 years’ imprisonment.
Steps 4 and 5 require me to consider whether there are any aggravating factors or any mitigating factors. The defendant has a previous record of possession of dangerous drug. According to HKSAR v Wan Wai Lun [2018] HKCA 30, at paragraphs 18 to 20, previous conviction for possession of dangerous drug is not an aggravating factor for a sentence on drug trafficking. I do not consider the defendant’s previous conviction as an aggravating factor.
Mr Yip submitted that the defendant had to support the family and pursued the wrong path for quick money. However, the Court of Appeal in Yusuph at paragraph 44, stressed the seriousness of drug trafficking and the problems that it brings to families and the serious harm it causes to society. As rightly pointed out by Mr Yip, in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional. There is none in the present case.
As the Court of Appeal in Abdallah also emphasised at paragraph 32:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
Accordingly, the defendant’s personal circumstances do not constitute mitigating factors. The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the sentence down to 22 years.
The final sentence I would impose on the defendant is one of 22 years’ imprisonment.