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Procedural History

The appellant had pleaded guilty to trafficking in 18.66 grammes of methamphetamine hydrochloride (“ice”) and an unquantified amount of methamphetamine. The facts disclosed that she entered Hong Kong from China at Lok Ma Chau in July 2013 in possession of the drugs. She had subsequently absconded but surrendered herself in June 2019. The sentencing Judge adopted a starting point of 7 years imprisonment and enhanced the starting point by 6 months to reflect the cross-border factor. A discount of 6 months had been made to allow for a portion of the drugs being for the appellant’s personal consumption. A 25% discount was then made for the guilty plea (a lower than usual discount as the appellant had absconded) resulting in a sentence of 5 years 3 months for this offence. In this appeal the Court of Appeal examined the ambit and application of the aggravating factor, commonly referred to as the “international element”.

The Appellant’s Submission

It was submitted that:

1. the Judge erred in enhancing the starting point for the international element when the circumstances involved the appellant simply bringing the drugs from China to Hong Kong;
2. the international element, as an aggravating factor, should be confined to large-scale and well-organized international crime;
3. the court should consider all the circumstances including the quantity of drugs, the manner of trafficking, the nationality of the trafficker, the purpose of the importation (personal consumption or disseminating to others) and the nature and degree of the trafficker’s involvement;
4. as the definition of “trafficking” includes “importing into Hong Kong” (under section 2 of the Dangerous Drugs Ordinance, Cap.134) the enhancement of sentence for the international element constitutes double punishment;
5. the enhancement of 6 months was in any event excessive and without reference to the role and culpability of the appellant.

Judgment

In giving the judgment of the Court, Zervos JA confirmed that the courts have long recognised that importing dangerous drugs is a serious aggravating feature because the drugs can find their way into the local drug market and put the people and the community at risk of substantial harm. However whether there is an international element will be fact and case sensitive and may therefore be manifested in a variety of ways (HKSAR-v- SK Wasim [2020] 2 HKLRD 1139). As stated by Macrae VP in HKSAR-v-Ali Qasim [2020] HKCA 56:

…the danger of a label such as “international element” is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation) of dangerous drugs.  It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs.  The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.

So, in certain circumstances, the importation of dangerous drugs may not invoke the aggravating factor of an international element as seen in HKSAR-v- Ko Wai Sing [2021] 5HKLRD 724 where the offender had purchased gamma-butryolacetone over the Internet from overseas for his own consumption, and without any attempt to disguise the fact or nature of the importation and with no intention to traffic on the drug in Hong Kong. Zervos JA, after reviewing a number of authorities, concluded that the Court of Appeal’s observations in SK Wasim and Ali Qasim (supra) were applicable in considering whether the “international element” was indeed present.

In this case, whilst a small portion of the drugs were brought into Hong Kong for the appellant’s personal consumption, the vast majority (by the appellant’s admission) were for the local drug market. Therefore there existed an aggravating “international element”. Broad guidelines on the level of enhancement suggested an appropriate enhancement of 3 months, rather than the 6 months adopted by the sentencing Judge and the sentence was reduced to 5 years imprisonment.

This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR V Fong Yau Heung