On 30 June 2019, the defendant arrived at the Hong Kong International Airport from Johannesburg, South Africa by flight number SA286. She was intercepted by customs officers at Customs Arrival Hall A.
A body search was conducted on her and a packet of white powder weighing 218 grammes containing 184 grammes of cocaine was found on the inside of her underwear. She was arrested, taken to North Lantau Hospital and then the Queen Elizabeth Hospital. Over the next several days, the defendant excreted a total of 60 pellets from her body. The 60 pellets altogether contained 465 grammes of white powder of which 373 grammes was cocaine.
The law relating to the sentencing of drug-trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.
The first step when approaching sentence for an offence of trafficking in dangerous drug is for the judge to identify the relevant guideline, band or bracket applicable to the quantity of drug concerned.
In respect of the quantity of cocaine in which the defendant trafficked, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. The case lays down a sentencing band of 15 to 20 years’ imprisonment for quantities of 400 grammes to 600 grammes of cocaine.
The second step is to assess the defendant’s role and culpability based upon the evidence. The defendant’s role was that of an international courier importing drugs from another country into Hong Kong by air. There is nothing in the evidence placed before me to distinguish this defendant from other international couriers. I assess her culpability and role at the same level as any other international courier.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside of the band, whether above or below, given the circumstances of the offence and the role of the defendant. This initial or preliminary step in the determination of an appropriate sentence is described by Macrae VP as a starting point in the calculation of the defendant’s sentence as opposed to the notional sentence after trial.
The starting point is identified by reference to the quantity of the dangerous drugs and the role and culpability of the defendant. The notional sentence after trial will be the figure that is reached after consideration is given to whether there are present any aggravating factors.
In respect of this defendant, trafficking in 557 grammes of cocaine, a mathematically calculated place within the sentencing band as already mentioned would be 18 years 11 months’ imprisonment.
Taking into account the defendant’s role and culpability and the weight of the cocaine in which she trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 18 years 11 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. I am bound by the Court of Appeal authority in the Abdallah judgment to enhance the defendant’s starting point to allow for the international element in the form of the importation of cocaine into Hong Kong from South Africa.
In HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal provided a broad guideline for a proper level of enhancement in respect of the international element. Following that guideline, this court accordingly enhances the sentence in this case by 1 year and 1 month. This results in a notional sentence after trial of 20 years’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in the judgment of Abdallah at paragraph 32, namely that in cases of this kind, the grievousness of the offence dictates that meaningful mitigation is rarely available and that:
“The message must be consistently delivered, even to the vulnerable such as the 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.”
Furthermore, the Court of Appeal again said in the judgment of Yusuph at paragraph 44 that:
“Given the appalling consequences which the proliferation of dangerous, particularly addictive, drugs has on families, communities, the workplace, indeed, on the whole fabric and functioning of society, the reasons for a defendant’s involvement in the crime and his personal circumstances are of far less importance than society’s duty to protect its citizens and the courts’ paramount function of ‘denunciation, deterrence and punishment’ of those who seek to traffic in dangerous drugs.”
In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purpose of the fifth step.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. In HKSAR v Suen Yuk Hang, HCCC 143/2021, Deputy High Court Judge McWalters described this sixth step as follows:
“The judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but one that is fair, balanced, timely and just.”
I have also considered other sentencing decisions since the handing down of the Yusuph decision. These included HKSAR v Kwan Wai Fan [2021] HKCFI 2036, HKSAR v Chan Ho Kwai [2021] HKCFI 2938, and HKSAR v Cheng Man Kit [2021] HKCFI 3032 plus others.
This court has been assisted by the way in which those sentencing courts had applied this sixth and final step. In considering the sixth step, I have taken into account the fact that the defendant is currently 31 years old with two young sons. The defendant herself is HIV-positive as is her second son. A sentence as long as 20 years’ imprisonment will mean that even if she receives full remission for good behaviour while serving her sentence, she will not be discharged from custody until she is close to 40 years of age. The sentence imposed upon the defendant will result in the defendant being away from her two sons for a very long time if she ever sees them at all again.
As stated by Deputy High Court Judge McWalters, the question for this court is whether the notional sentence of 20 years’ imprisonment will be crushing on this defendant. I am of the view that it will be.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced and ultimately just sentence for this defendant is 18½ years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted while allowing hope that the defendant will be able to reunite with her sons after she has completed her sentence.
Defendant, please stand up. I sentence you to a term of 18 years and 6 months’ imprisonment.