COURT: The accused pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 on 11 December 2023.
The particulars of offence alleged that on the 28th day of October 2022, at the Hong Kong International Airport, she unlawfully trafficked in 973 grammes of a solid containing 463 grammes of cocaine.
According to the Summary of Facts to which she agreed at the time of her guilty plea, at about 6.30 pm on 28 October 2022, she arrived in Hong Kong from Madagascar via Ethiopia. At the time, she was carrying a black suitcase and a pink backpack, and upon examination a brown packet containing the drug particularised in the charge was found concealed inside the suitcase.
The market retail value of the drug concerned is estimated at about HK$839,699.
Upon her arrest, the accused stated under caution that the suitcase belonged to her and that she bought it from a friend in Madagascar at a value that is equivalent to about HK$92. She said that she did not have any rewards for bringing the suitcase to Hong Kong. She had no knowledge of the cocaine inside. She would not give the suitcase to anyone in Hong Kong, and she would bring it back to South Africa because she liked it. She did not mention about anybody who would collect the suitcase from her in Hong Kong.
At the time of her arrest, the accused had cash of US$1,910 and one mobile phone with three SIM cards on her person.
Investigation revealed that her air tickets were paid by cash with an amount that is equivalent to about HK$14,000 and they were issued at Madagascar on 19 October 2022. The W Hotel also confirmed that there was a booking under the name of “SMOKWARIPA VINAS” (that is very similar to her name but with an additional “S” in front)between 28 and 31 October 2022 at a room rate of HK$2,100 per night. The booking was made on 21 October but it was cancelled on 24 October 2022.
In a video-recorded interview, the accused stated under caution that she was single. She was a full-time student with two sons aged six and eight respectively. She received money from her father, from the government as student subsidy and also from the government as social grants for her kids. The total sum that she received was about HK$3,200 per month. She said she was not in debt to anyone. She came to Hong Kong to buy clothes so that she could sell the clothes to earn money because she was not working.
She said under caution that her female friend called Lebo Machete whom she had known for a long time suggested to her to come to Hong Kong to buy cheap clothes. Lebo told her to fly from South Africa to Madagascar, and Lebo would pay for her return air ticket from Madagascar to Hong Kong and pay for her hotel in Hong Kong. She would return to Madagascar on 17 November 2022.
She came to Hong Kong alone. She did not know how much Lebo had spent on her air ticket and her accommodation in Hong Kong, that is the booking of the W Hotel. However, in respect of the remaining 20 days in Hong Kong, she would pay for her own accommodation. She said Lebo had given her a WhatsApp message showing a three-day hotel booking at the W Hotel which cost HK$6,100.
She said she left South Africa for Madagascar on 17 October 2022. Upon arrival, Lebo saw her suitcase and liked it a lot. She therefore agreed to give her own suitcase to Lebo, and she gave Lebo an amount equivalent to HK$90 to buy another suitcase for herself. And then in the morning, Lebo gave her the suitcase in the hotel. That is the present suitcase containing the dangerous drug found at the airport upon her arrival in Hong Kong. She said Lebo also helped her to pack things into the suitcase, therefore she did not suspect that there was anything concealed inside the suitcase. Lebo told her that upon her arrival in Hong Kong, a male friend would escort her to buy clothes, and she was supposed to call Lebo upon her arrival. That male friend would act as her tour guide and take her to buy clothes and to look for a hotel that she could afford. However, she was not asked to give her suitcase to anybody including that tour guide.
She said the US$2,000 on her person was her own savings that she brought with her for the trip, and she would use US$1,000 to buy clothes. She had also checked the back side of the suitcase when she packed her own belongings but she did not find anything abnormal. She also did not find the weight of the suitcase to be abnormally heavy. She did not notice anything abnormal at all.
From her mobile phone, upon investigation it was found that there was frequent call records between the accused and a person called Lebo between 7 September and 28 October 2022. There was also a screen capture shot of a three-day hotel booking in Hong Kong under the name that was similar to hers but with an additional “S” in the front for the period from 28 to 31 October.
The accused, now by her plea of guilty, admits and accepts that at the material time she unlawfully trafficked in all the dangerous drug seized.
The accused is almost 30 years old and she is a national of South Africa. She is single and she claimed to be a full-time student with two sons aged six and eight respectively. She had no previous criminal conviction in Hong Kong and counsel informed me that she also has a clear record in South Africa.
In his mitigation, counsel urged me to take into account her early plea of guilty to the offence. I was told that she committed the offence because she had outstanding school tuition fees, and her reward would be the payment of those outstanding school tuition fees and the delivery of food to her family. In mitigation, counsel said that this court should take into account her unsophisticated role as a courier at the lowest rank of the trafficking hierarchy. Counsel admitted that there is an aggravating feature of the international element in this matter.
A mitigating letter prepared by the accused herself asking for leniency was submitted to this court. Also there was a mitigating letter and attached documents from Father John Wotherspoon which confirmed that the accused had joined Father Wotherspoon’s anti-narcotics campaign, that she had helped the campaign by writing simple but striking letters which they had used and would continue using. Information about certain other people were given to the authorities in South Africa and Zimbabwe, and Father Wotherspoon asked this court to give her a 3-month reduction on sentence for her participation in his campaign.
Pausing at this matter, if I may say that the information that has been given to me about her participation is, I would say, very general information and I am not informed of any concrete or updated result of the investigation of the information given.
Also I am mindful of course she was not the only person who gave useful information but all the other inmates as well. By saying that I have not ignored her own contribution to Father’s campaign. Counsel also assured me that she will continue to participate in the campaign, and she is determined to continue to participate in the campaign herself. However, I am unable to determine from the information before me whether she had given any specific or meaningful contribution as a result of her participation in the campaign herself.
While the Court of Appeal said in the case of Kilima, [2018] 5 HKLRD 88 that a sentencing judge has a discretion to allow a token discount of no more than 3 months for participation in Father Wotherspoon’s campaign, the Court of Appeal also expressed the view that this is a matter that the executive is better equipped to perform.
I take the view that at this stage, it is not appropriate for me to exercise my discretion to order a further discount for her participation in the campaign. The matter should be left for the executive to address and she is encouraged to continue with her participation in the campaign in due course. It would be better for the executive to assess the degree and the effectiveness of her contribution if she continues to participate in due course. It is for the executive to decide whether her contribution should be awarded by the use of any executive power of clemency.
So it is my view that no further discount should be granted at the present stage, but that should not stop her from being given a discount in the future by the executive, if that is considered to be appropriate.
Now, in sentencing the accused, I have borne in mind the sentencing approach enunciated by the Court of Appeal in Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of Lee Ming Ho [2024] 1 HKLRD 1186.
The tariff laid down for trafficking in heroin is also appropriate for trafficking in cocaine. According to the sentencing guideline, the appropriate sentencing band should be one of 15 to 20 years for trafficking in between 400 and 600 grammes of cocaine narcotic.
I have taken into account the role and the culpability of the accused. I accept counsel’s mitigation that she should be regarded as a courier which put her at the lowest bottom in the drug trafficking hierarchy.
In respect of this particular case, there is an aggravation of international element. According to the authority of Lee Ming Ho, the Court of Appeal said that this should be a matter to be taken into account when the count considers the role and the culpability of the defendant or the arrested person, instead of being treated as an enhancement feature. So in consideration of the role and the culpability of the accused, I take into account her role as a courier but the fact that she was an international courier.
Having considered the overall circumstances of the facts of this case, and her role and culpability in this matter, I consider that the notional starting point after trial should be one of 17 years of imprisonment, that is after taking into account her role and culpability and the international element.
So the notional starting point after trial, should be one of 17 years. Since the international element has already been considered in her role and culpability, I will not double count it as an aggravating feature. So 17 years is the ultimate starting point to be used after trial.
As I said, whether her contribution to Father Wotherspoon’s campaign should be regarded as meaningful is a matter to be considered by the executive in due course when the results are better known. So I would not give any further discount to her on that matter.
Of course, personal circumstances do not amount to any mitigating factor in this kind of offence. So the only mitigation is her early plea of guilty which would entitle her to a one-third discount. The total sentence that I would impose on her after the one-third discount is one of 11 years and 4 months’ imprisonment. That is the sentence that she has to face in due course.