The evidence established that he was intercepted by customs officers when he went through the “nothing to declare” channel upon his return from Sao Paulo, Brazil via Doha. He was in possession of a suitcase and a backpack at the time.
The cocaine which was the subject of the charge was concealed in three packets found in a secret compartment of the suitcase.
It had a street value of HK$4,254,624.
Upon his arrest, the accused stated under caution in a preliminary inquiry that the suitcase was given to him by his friend Yasmin in Brazil. He denied any knowledge of the dangerous drug.
The issue at trial was whether the accused knew that the suitcase contained the dangerous drug. The accused’s case, which was by the jury’s verdict rejected, is that he was just an innocent dupe used by Yasmin, the girl he met in Sao Paolo, to use the suitcase given by her as replacement of his original suitcase which Yasmin had accidentally broken or intentionally broken.
The accused was born in Hong Kong in January 1999. He is now 23 years of age and he was 20 years old at the time of the offence. He is single. He has completed Form 6 education and worked as a chef in a restaurant, earning a basic salary of about HK$16,000 a month. He has a clear record.
In mitigation, counsel Mr Ng on his behalf submitted that at most his role was one of being a courier. Counsel mentioned his relatively young age and his clear record but recognising at the time that not much can be said on behalf of him as mitigation.
The approach to the sentence of the offence of trafficking in a dangerous drug is laid down in the case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
In the present case, I am satisfied that the accused’s role was that of a courier, therefore his sentence is to be determined primarily by reference to the relevant tariff and the quantity of the dangerous drug concerned. It is well established that youth and clear record are plainly irrelevant.
As the Court of Appeal acknowledged in the case of HKSAR v Bugaay [2008] 6 HKC 326, the couriers who are selected by international drug syndicates to carry drugs of substantial value almost inevitably have no criminal record. Part of their usefulness to the syndicate is that they are able to pass as normal, law-abiding passengers whatever their age group. Furthermore, in cases where serious criminal acts are concerned, a clear record or good character in itself is not a factor for which a discount is generally appropriate and age will usually be relevant only where extreme youth is concerned.
The tariff laid down for trafficking in heroin applies to cocaine. According to the sentencing guidelines in the case of HKSAR v Abdallah [2009] 2 HKLRD 437, the starting point for trafficking in 1,200 to 4,000 grammes of cocaine is 23 to 26 years of imprisonment, subject to enhancement. The present case involves 3,493 grammes of cocaine narcotic. On a pure arithmetic approach, a starting point of 25 years and 5 months’ imprisonment would be appropriate. Taking into account the role of the accused, I adopt 25 years and 5 months’ imprisonment as the starting point for sentence.
At the material time, the accused was importing the drug into Hong Kong. When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. The importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally.
The courts in Hong Kong have long recognised that importation is a serious aggravation because it involves the international smuggling of the quantity of drugs imported, finding its way into the local drug market and putting the people and the community at risk of substantial harm. It fuses the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong.
The fact that there was an international element is an aggravating factor calling for the enhancement of the starting point. As the Court of Appeal says in the case of Abdallah, for amounts above 1 kilogramme of cocaine, the enhancement would not be less than 2 years’ imprisonment. I do not see any reason to enhance the sentence for a shorter period. Hence, I enhance the starting point of 25 years and 5 months’ imprisonment by 2 years for the international element, making a notional sentence after trial of 27 years and 5 months’ imprisonment. I see no reasons which may reduce the accused’s sentence, after all, he was convicted after trial.
Therefore, the accused is sentenced to 27 years and 5 months’ imprisonment.