COURT: The accused was convicted after trial by the jury of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
By their verdict, the jury must have accepted the evidence of the first prosecution witness, Mr Cheng, that it was the accused who had recruited Mr Cheng to bring the two wine bottles that contained cocaine from Amsterdam to Hong Kong in February 2020. The jury must also have found that the accused knew that there was cocaine in the wine bottles.
It is an admitted fact that there was a total of 831 grammes of cocaine inside the bottles, and that the street retail value of the cocaine was about HK$1,046,664 in February 2020.
Background and Mitigation
In mitigation, it is said on behalf of the accused the following. The accused was 28 years old at the time of offence. He is now 32. He has obtained a Master’s degree in 2017 from Hong Kong Open University, as it was called
then. He has previously taught at the same university and two secondary schools. He has been an insurance agent. Currently, he is a tutor for DSE students in Hong Kong. He earned about HK$30,000 a month. He is single. He lives with his parents and younger brother. He contributed a few thousand dollars each month to the household expenses. He does not have any criminal record before this case.
His parents have written letters to plead for leniency for the accused. I have read them and I noticed that they had been in court throughout the trial, including today.
It is said that the accused was kidnapped in Thailand and falsely imprisoned in Myanmar in 2022, and that he was subjected to torture for six months, resulting in PTSD, depression, and some physical injuries. Ms Herbert very fairly informed the Court that those physical injuries were not an issue anymore. However, she submitted that the accused was still suffering from PTSD and depression. There is, however, no documentation in support. The accused returned to Hong Kong in December 2022. He was arrested for the present offence the day after his return to Hong Kong.
Sentence
I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, [2024] HKCA 150, and HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, [2024] HKCA 296.
Step 1 is to identify the relevant guideline band applicable to the quantity of narcotics concerned. The present offence was committed on 17 February 2020. The quantity of cocaine is 831 grammes. If based on the sentencing guidelines at that time, which was HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, trafficking in 600 to 1,200 grammes of cocaine should attract a starting point for sentence of 20 to 23 years of imprisonment. On a pure mathematical basis, the starting point should be 21 years 2 months.
However, the Court of Appeal has on 5 March 2025 laid down new sentencing guidelines for trafficking in cocaine, amongst other dangerous drugs, in the case of HKSAR v Huang Ruifang [2025] 2 HKLRD 138, [2025] HKCA 234. According to those new guidelines, trafficking in 500 to 1,500 grammes of cocaine should attract a starting point for sentence of 16 to 20 years of imprisonment. On a pure mathematical basis, the starting point for trafficking in 831 grammes of cocaine will be 17 years 4 months which is less than that if following Abdallah.
Although the present offence was committed in February 2020 and therefore pre-Huang Ruifang, following Article 12(1) of the Hong Kong Bill of Rights which stipulates that:
“If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”
and the principle in Mark Anthony Seabrook v HKSAR (1999) 2 HKCFAR 184, the sentencing of this case should follow the new guidelines.
Step 2 is to assess the role of the defendant, that there is an international element to the offence is to be taken into account in this step.
The accused blatantly left a post on Facebook to recruit someone to bring cocaine to Hong Kong. Although it is unclear whether this post was a public post or not, it was clearly meant for at least a number of people. Based on his testimony, Mr Cheng had received free air tickets, free hotel accommodation for four nights and 500 Euros as expenses in Amsterdam, and he would receive HK$7,000 to HK$8,000 upon delivery of the bottles in Hong Kong. As to the accused, he had already deducted 30 per cent before giving Mr Cheng his reward. Whatever the exact amount the accused stood to receive, if not already received, his reward cannot be said to be a small amount. He sent Mr Cheng out to take the risk whilst himself despicably hiding in the shadow. By their verdict, there cannot be any dispute that the jury concluded that the accused knew full well that there would be an international element in this drug trafficking activity.
In Lee Ming Ho which is also cited in Kapusamy, the Court of Appeal commented that:
“It is clear from our review of the authorities, that the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong.”
Further, the cocaine was disguised as red wine through being concealed in seemingly innocuous red wine bottles. Moreover, whereas Mr Cheng reported to the accused, the accused himself was a middleman reported to Ah Yu.
All things considered, the accused clearly was higher up in the hierarchy than a mere courier and he knew full well of the existence of the international element.
Step 3 is to decide where within the guidelines the accused should lie. In light of my analysis in step 2, I adopt a starting point for sentence of 18 years and 5 months.
Step 4 deals with aggravating factors, if any. There is no aggravating features in this case.
Step 5 considers the mitigating factors. I do not regard the accused’s personal or family circumstances as any mitigating factor. The accused’s PTSD and depression are something he started suffering after the present offence. In any event, he will receive proper treatment whilst serving his sentence in this case.
Finally, in step 6, I consider the sentence of 18 years and 5 months of imprisonment fair, just and balanced in all the circumstances of the offence and the accused. He is sentenced accordingly.
You are convicted by the jury of one count of trafficking in a dangerous drug. And you are sentenced to 18 years and 5 months of imprisonment.
