HKSAR v. Patathayo Orawan and Others
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DCCC 1490/2025 [2026] HKDC 1749 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1490 OF 2025 -------------------------------------------------
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| Ms ALVA Patricia Elisa, instructed by Hoosenally & Neo, assigned by the Director of Legal Aid, for the 2nd Defendant | ||||||||||||||||||||||||||
| Ms MOOSDEEN Munira, instructed by Tung & Associates, assigned by the Director of Legal Aid, for the 3rd Defendant | ||||||||||||||||||||||||||
| Mr KWAN Jonathan, instructed by Heung Massie & Clement, assigned by the Director of Legal Aid, for the 4th Defendant |
| Offence: | Trafficking in a dangerous drug（販運危險藥物） |
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REASONS FOR SENTENCE
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1.D1 to D4 are jointly charged with one count of trafficking in a dangerous drug[1]. The particulars of the charge alleges that D1 to D4, on 24 November 2024, at Passenger Terminal 1, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 23.88 kilogrammes of cannabis in herbal form.
2.D1 to D4 pleaded guilty to the charge.
Facts
3.At around 1:32 pm on 24 November 2024, D1 and D2 were intercepted by Customs officer at the Green Channel at Arrival Hall A of the Hong Kong International Airport. D1 was carrying a pink check-in suitcase while D2 was carrying a silver check-in suitcase. D1 and D2 both unlocked and opened their suitcases (with baggage tags under their names) at the request of the Customs officers for inspection.
4.6 vacuum bags were found inside in each of D1’s and D2’s suitcases. Visual inspection revealed that each of the vacuum bag contained two pieces of folded clothing. Upon unfolding one piece of clothing in each vacuum bag found in D1’s and D2’s suitcases, a grey plastic bag containing a transparent vacuum bag with suspected cannabis buds were discovered inside each of those clothing. Narcotic tests on the suspected cannabis buds were conducted which yielded positive results for cannabis.
5.D1 and D2 were arrested for the offence of trafficking in dangerous drugs at 1:43 pm and 1:49 pm respectively. 24 vacuum bags (12 vacuums bags from D1’s suitcases and another 12 from D2’s suitcases), their baggage receipts, passports, boarding passes for the flight SL360 from Bangkok to Hong Kong, some cash in different currencies, mobile phones and SIM cards were seized.
6.At around 1:48 pm and 2:03 pm on 24 November 2024, D3 and D4 were intercepted by Customs officer at the Green Channel at Arrival Hall A of the Hong Kong International Airport respectively. Upon inquiry, D3 and D4 told the Customs officer that they had travelled from Bangkok to Hong Kong on flight SL360. D3 was carrying a black check-in suitcase while D4 was carrying a pink check-in suitcase.
7.D3 was taken to the Baggage Checking Counter and he unlocked his suitcase at the request of the Customs Officer. Upon search, 6 vacuum bags each contained two pieces of folded clothing were discovered. A grey plastic bag containing a transparent bag with suspected cannabis buds inside was found by unfolding one piece of clothing. Narcotic test was conducted on the suspected cannabis buds which yielded a positive result for cannabis.
8.D3 was arrested for the offence of trafficking in dangerous drugs at around 1:58 pm. Under caution, he stated that he did not know what was inside the suitcase. 12 vacuum bags containing suspected dangerous drugs, D3’s passport, his boarding pass, baggage receipt, some cash in HK and Thai currency, mobile phone and 2 SIM cards were seized.
9.D4 unlocked her suitcase by request at around 2:05 pm and upon search 6 vacuums bags were found. The Customs officer opened one of the vacuum bags and found a pair of jeans, which contained a transparent plastic bag with suspected cannabis buds inside. Narcotic test was conducted on the suspected cannabis buds which yielded a positive result for cannabis.
10.D4 was arrested for the offence of trafficking in dangerous drugs at around 2:12 pm. Under caution, D4 remained silent. 12 vacuum bags containing suspected dangerous drugs, D4’s passport, her boarding pass, baggage receipt, some cash in Hong Kong and Thai currencies, mobile phone and 2 SIM cards were seized.
11.Confrontations between D1 to D4 were carried out on the next day. Under caution, D1 stated that D2 was her boyfriend while D3 and D4 were her friends. D2 stated that D1 was his girlfriend while D3 and D4 were his friends. D3 stated that D1, D2 and D4 were his friends. D4 stated that D1 to D3 were her friends.
12.D1 to D4 remained silent during subsequent cautioned video-recorded interviews conducted in the presence of a Thai interpreter.
13.A screening of D1’s mobile phone was conducted with her consent and revealed the following messages and conversations:
Line messages between D1 and “Pele terrapat”:
(a) On 20 November 2024, D1 asked if Pele was ready to fly, to which Pele asked which date. D1 then stated that Ning applied for the passport and that there will be a meeting the next day. D1 also said “risky” and “like we are a couple”;
(b) On 24 November 2024, D1 sent photos of D1-D4’s flight tickets from Bangkok to Hong Kong on flight SL360 and from Hong Kong to Chiang Mai on flight UO744 under the same booking via Agoda;
(c) D1 also sent photos of 6 e-tickets for the Hong Kong Peak Tram and Sky Terrace for 25 November 2024 booked under D2’s name; and
(d) D1 then sent photos of a booking under D2’s name for a double room at Imperial Hotel, Tsim Sha Tsui between 24 and 26 November 2024.
Facebook messages between D1 and D3:
(a) On 22 November 2024, D3 stated ‘fly tomorrow’ and that there would be a meeting on the next day; and
(b) On 23 November 2024, D1 and D3 discussed the time for the flight. D3 told D1 that “they want us to prepare ourselves” and that Ning dyed her hair back. D1 then gave D3 D2’s full name.
Facebook messages between D1 and “Ka’ Ninggg”:
(a) On 21 November 2024, Ka’ told D1 that there was a meeting at her apartment. D1 asked Ka’ whether she would dye her hair back when she flies. D1 and Ka’ then discussed travel plans. Ka’ stated that she would not go if there was no tour and hotel and D1 stated that it was risky to go alone, adding that “it has to have a hotel, round trip tickets, and travel plans all set.”
(b) D1 asked how many females were going, to which Ka’ replied 2 of them. D1 then said “going as a couple”, to which Ka’ said “if you get into the cold room, say you come alone” and “we go as couple”; and
(c) On 23 November 2024, Ka’ stated “just think that we travel then we have money, period”.
Facebook messages between D1 and “Apithana Amatayakun”:
(a) On 21 November 2024, D1 asked how many people were on a trip normally, to which Apithana replied “big order more people”;
(b) Apithana stated “it’s not about the tour, we have round trip tickets, and travel tickets” and “we have everything ready”. Apithana then stated “basically 70,000 with bonus every trip”, “your job is to travel only” and “when you arrive at the hotel, someone will take the stuff then everything is done”, to which D1 replied “ok” and “it’s settled then.”
14.TIC record showed that D1 and D2 both arrived Hong Kong at 1:16 pm on 24 November 2024, while D3 and D4 both arrived Hong Kong at 1:27 pm on the same day.
15.The manager of the Imperial Hotel at Tsim Sha Tsui confirmed that D2 and D3 each had a booking for a room for 2 adults between 24 and 26 November 2024.
16.Government chemist confirmed that D1-D4’s suitcases each contained 5.97 kg of cannabis in herbal form. The estimate aggregate retail price was HK$4,417.80.
17.On 24 November 2024, D1 to D4 unlawfully trafficked in 23.88 kg of cannabis in herbal form at Passenger Terminal 1 of the Hong Kong International Airport.
Defendants’ Personal Circumstances and Mitigations
D1
18.D1 is a 31 years’ old divorcee with two children aged 11 and 10 respectively. She was born in Thailand and received education up to High School level. Prior to the offence D1 had been living and working as a waitress in Chiang Mei earning about HK$3,400 per month. Her parents and children are financially dependent upon D1.
19.D1 has a clear record in Hong Kong.
20.It is submitted that D1 was approached whom she believed was a criminal organization in Thailand and eventually agreed to carry some drugs to Hong Kong for a financial reward of 70,000 Thai Baht (equivalent to approximately HK$18,000).
D2
21.D2 is 23 years old and born in Thailand. He was 21 years old at the time of the offence.
22.D2 received education up to secondary three level in Thailand. He then took up some casual employment to support his parents and siblings.
23.D2 has a clear record in Hong Kong.
24.Letters written by D2 and his elder brother were submitted. D2 stated that he committed the offence out of financial reasons and was deeply remorseful for what he had done. His elder brother commented that D2 was not bad in nature. Both asked for the court’s leniency so D2 can reunite and take care of his family in the near future.
D3
25.D3 is a 23 years old Thai national. He studied up to a Secondary diploma in Thai. His parents left him at the care of his grandparents when he was very young and since then he was raised by his grandparents and lived with them throughout the years. In 2020, his grandparents for different reasons were hospitalized and D3 had to move to another province in Thailand to secure employment to pay for family expenses and school fees for nephew. It is submitted by D3’s counsel that even in 2022, D3’s monthly income as a waiter, which was about 12,000-13,000 Thai Bhat (equivalent to HK$3,000) was not able to cover his basic needs including rental.
26.D3 has a clear record in Hong Kong.
27.D3 was diagnosed with an early stage of HIV in 2023 and he was required to go to hospital for check-ups every month and received medications. He had to borrow money to pay for the medical expenses of 5,000 Baht (equivalent to HK$1,500) per month.
28.As for the present offence, it is submitted that in around January 2024, D4, whom D3 had known for 10 years, introduced a Mr Poom to D3 to seek an avenue to earn money to solve his financial difficulties. Mr Poom later in October 2024 asked if D3 would be interested in delivering cannabis drug, with a financial reward of around 100,000 Bhat. On around 19 to 20 November, Mr Poom asked D3 to meet the Boss in Chiang Mai.
29.All of the defendants, including Mr Poom and others whom D3 did not know, attended the meeting on 20 November 2024. D1-D4 were asked to prepare themselves to carry and deliver the cannabis buds to Hong Kong at any given time. D1-D4 agreed with the proposal. A live group chat was then set up by the “Boss”. D3 received a message on 22 November 2024 that he would be going to Bangkok on 23 November and then fly to Hong Kong on the 24 November. The itinerary together with the hotel booking were also uploaded to the group chat.
30.It is submitted that none of the defendants were assigned as a leader for this drug delivery. All defendants were supposed to wait for further instructions concerning the delivery but they were arrested at the airport before any contact was received. D3 had no idea whom and where the drugs were going to be delivered to. He had not received the promised reward of 100,000 Bhat, but only HK$1,950 on 24 November 2024.
31.It is further submitted that D3’s role fell in the lower end of the scale and he was only acting as a courier to deliver the drugs.
32.Medical record from CSD, D3’s mitigation letter and a course enrolment letter issued by the Chinese University of Hong Kong School of Continuing and Professional Studies (CUSCS) were submitted. It is confirmed by CSD that D3 is a HIV carrier. D3 in his letter stated that he had made a big mistake and ask for court’s leniency so that he can return to Thai to take care of his family. CUSCS confirmed D3 had enrolled a self-learning course in English grammar for beginners in June 2026.
D4
33.D4 is a 25 years old Thai national. She received education in Thailand up to university level. D4 was unemployed and financially supported by her family in Thailand.
34.D4 has a clear record in Hong Kong.
35.It is submitted that D4’s mother is suffering from a series of chronic illnesses, and it is her wish to return to homeland as early as possible to take care of her mother. It is further submitted that D4 had enrolled and completed an English language course for beginners during her incarceration in Hong Kong.
Reasons for Sentence
36.In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal adopted a six-step sentencing approach for the offences of trafficking in dangerous drugs:
1st step: Identify the relevant guideline band (or bracket) applicable;
2nd step: Assess the role and culpability of the defendant;
3rd step: Identify where in the relevant band of the guidelines the defendant comes;
4th step: Consider whether there are aggravating factors;
5th step: Consider whether there are mitigating factors; and
6th step: Ensure that the sentence is a fair, just and balanced in all the circumstances of the offence and the offender (including the application of the totality principle).
37.Regarding sentencing tariff, there used to be a difference for trafficking in herbal cannabis and cannabis resin, as it was observed that the potency of herbal cannabis was lower than that of cannabis resin (see Attorney General v Tuen Shui Ming and another [1995] 2 HKCLR 129 and Secretary for Justice v Cheung King Kong [2020] 3 HKLRD 837).
38.However, in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the Court of Appeal having received detailed evidence concerning effects and potency of cannabis, opted that the sentencing guidelines for trafficking in herbal cannabis and cannabis resin should be unified.
39.The quantities of the dangerous drugs involved in the present case is 23.88 kg. Under the guidelines laid down in Nguyen Thang Loi, the starting point for trafficking in herbal cannabis over 15,000 grammes and below 45,000 grammes should be 66 to 96 months’ imprisonment.
40.On a pure arithmetic calculation, the starting point for trafficking in 23.88 kg herbal cannabis should be 74.8 months’ imprisonment.
41.As all the Defendants are jointly charged, the overall quantity of the dangerous drugs involved, instead of the individual quantity found in the suitcases which belonged to them, should be adopted for consideration of the starting point for sentencing purpose.
42.The facts for the case clearly involved an international element. In HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, the Court of Appeal stated that “international element” is not a separate additional aggravating factor on its own, but the court shall take into account such in considering the roles of the defendants.
43.I accepted the roles of all Defendants are couriers, and they share the same culpability. However, they imported dangerous drugs from overseas to Hong Kong, and air tickets and accommodations were arranged and provided for them. They took the same flight together and each of them were carrying a suitcase with exact amount of herbal cannabis (5.49 kg) found inside. Messages retrieved from D1’s mobile phone showed that there were instructions given as to how to react when being questioned at the immigration checkpoint in Hong Kong.
44.Having considered all the factors and the submissions by counsel, I would adopt a starting point of 78 months’ imprisonment for all 4 defendants. The sentence is reduced to 52 months’ imprisonment for their guilty plea. It appears that all defendants committed the present offence out of economic hardships but it does not constitute a ground for mitigation of sentence.
45.For D3, there is no evidence that he is not in good health, despite the fact that he is HIV positive. Further, the mere fact that a defendant is in ill health will seldom be a basis for reducing the sentence for crimes of gravity (See R v Ho Mei Lin [1996] 4 HKC 491 and HKSAR v Yip Kai Foon [2000] 3 HKCFAR 31). Having said that, I cannot rule out the possibility that D3 might encounter some form of social outcast while serving his sentence in prison and make it harder for him to endure. On this basis I exercise my discretion and further reduce his sentence for 2 months.
Sentence
46.The sentence is as follows:
D1: 52 months’ imprisonment;
D2: 52 months’ imprisonment;
D3: 50 months’ imprisonment;
D4: 52 months’ imprisonment.
| (W. H. Ko) Deputy District Judge |
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