The suspected cocaine was analysed and it comprised 1,467 grammes of a solid containing 1,080 grammes of cocaine. The mixture and the cocaine were the subject of an indictment alleging that on 16 July 2019, she unlawfully trafficked in that cocaine. Following a trial, a jury delivered the unanimous verdict of guilty. She was convicted and now faces a sentence for her conduct. At the trial, the central issue that the jury had to consider is whether it was proved to the criminal standard that the accused knew that there were dangerous drugs in her luggage. The inescapable conclusion of the verdict of the jury is that they considered this to be proved together with the other elements of the offence. For my own part, I have no difficulty in honouring the finding of the jury. I entirely agree with their verdict.
Quite how this mature and independent woman of obvious intelligence, a woman of no previous convictions, with a university education and a responsible job in the medical field came to be carrying a suitcase containing just over a kilogramme of cocaine is a long and involved story.
Following her interception by officers of the Customs and Excise Service, the accused submitted to a video-recorded interview with customs officers with the assistance of a Russian-English interpreter. In the video-recorded interview, the accused expressed that she had been instructed by her boyfriend, Dimanche, who she met online, to collect a suitcase in Ethiopia. She had done two similar trips before this. She said she came to Hong Kong with the hope of meeting her boyfriend in person. She denied knowledge of the dangerous drugs in the suitcase.
The accused is to be sentenced for her conduct in bringing the cocaine into Hong Kong on this occasion. I mention this solely to make the point that on no account is the sentence she is about to receive for any part of the conduct of carrying luggage at the behest of Dimanche on the two earlier occasions.
Part of the story was revealed through an examination of the mobile phone of the accused. That was examined in materials including screenshots were obtained from it. It revealed records of what has happened via the communications with the person that the accused knew as Dimanche and a person known as Alinka. According to the accused, Alinka was her close friend.
In the video-recorded interview given by her, she said that the purpose of travelling to Hong Kong on this occasion was to finally meet this man who she believed was named Dimanche. She travelled to Istanbul and then to Ethiopia where she had to wait for an airplane for something of the order of 24 hours.
When she landed in Ethiopia, she received the request or instruction from Dimanche to pick up this bag. She took the bag which was delivered to her in her hotel room. She had originally be told by him that it was papers for his business. She unpacked the bag. There were no papers whatever in the bag. She carried that bag to Hong Kong. The bag contained some ill-fitting clothing which were wholly inappropriate for the accused. Dimanche paid for the trip from Ukraine to Istanbul to Ethiopia and then to Hong Kong. He paid for the hotel in Ethiopia.
The WhatsApp communications implied a romantic entanglement with Dimanche. The accused also testified to this effect. And there were two other trips to places where she had picked up luggage at the behest of Dimanche. Her testimony was she was going to these places to consummate a romantic entanglement with him. On both previous occasions, when she travelled at the behest of Dimanche, it was on the basis they would meet. However, on both occasions, there was an excuse given by Dimanche as to why that could not happen as planned. She testified that she had first come into contact with Dimanche, as I say, through a dating website. On each of the two previous intended meetings, Dimanche had not shown up and all that had happened was, on each occasion, she was asked to carry a bag for him to Hong Kong and Sri Lanka respectively. On this particular trip, the one, the subject of the indictment, according to her, it was the third trip arranged and paid for by Dimanche. They were finally to meet in Hong Kong to commence their life together.
The case for the accused at trial was that she was utterly blinded by love or, possibly, lust and did not know what was in the suitcase carried from Ethiopia to Hong Kong. While it would have been open to the jury to conclude that there might have been a romantic component in the relationship, their verdict contains the inescapable conclusion that they rejected the proposition that she did not know what was in the bag given to her in Ethiopia. They positively found that she knew the bag contained dangerous drugs.
Antecedents and Mitigation
I have already mentioned that the accused is a woman of maturity, independence and obvious intelligence. She had in the Ukraine a perfectly respectable career in the medical field. She is single and aged 37. Her parents are retired. She has no previous convictions either in Hong Kong or elsewhere. I regret I cannot discern with any degree of confidence what her motivation was. It could have been love, could have been lust. However, as to her knowledge of the contents of the suitcase, the jury have spoken with utter clarity. They were right.
A medical report was obtained on the accused and that reveals that she was diagnosed as having endometrial carcinoma, that is, cancer of the uterus. The accused was advised to undergo surgery to remove her uterus. However, an MRI was recommended to check the extent of the cancer. Subsequently, the hospital notes of the accused were supplied to the parties and to the court. The MRI was performed, followed by surgery to remove the uterus. I understand that there are scheduled follow-up appointments and no doubt when cancer has been detected, even if it has been removed by the surgery, there will be an increased anxiety for any future tests. I can readily accept that this would be a serious psychological impact as a result of the uterus of a woman of the age and circumstances of the accused.
Sentencing Principles
Starting Point - Trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to cocaine. These particular drugs have terrible consequences for the individual. Ridding oneself of an addiction to cocaine is, to say the least, an arduous process and sadly, history demonstrates that attempts are often fraught with instances of disappointment.
There are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. The view of the community and the court is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view of the courts that the community takes in relation to trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs including cocaine, which is, of course, the subject to this charge. The maximum penalty under the law is a fine of $5 million or life imprisonment.
Source of guidelines in relation to trafficking in cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of these guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The guidelines set by our courts for trafficking in 1,080 grammes of cocaine as meriting a sentence between 20 and 23 years.
Role of the accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974). In that case, the Court of Appeal recognised that although the analytical starting point of sentencing guidelines for drugs such as cocaine start upon the premise of sentencing a courier or a storekeeper, there was a range of culpability even if the trafficker could be characterised, as in this case, a courier, indeed an international courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking-in-dangerous-drugs cases where the sentence was based solely on narcotic content.
Application of Sentencing Principles
A mathematical application of the sentencing guidelines suggests a sentence of 22 years and 4 months. No discount is available to the accused. It is clear that she must be treated as an international courier of dangerous drugs. Established authority supports the conclusion that there should be an enhancement of sentence to reflect that fact. On the basis of the application of Herry Jane Yusuph (above), it would be abundantly clear that a sentence greater than the mathematical application of the sentencing guidelines is justified.
The carrying of a bag containing the hidden cocaine by the accused was, in my opinion, an act of monumental stupidity. The act of bringing just over 1 kilogramme of cocaine into Hong Kong has the potential to do serious harm to members of the community. Mercifully, by the interception of the luggage of the accused, that kilogramme has been taken out of circulation. While in custody in Hong Kong, a serious medical condition in the accused was detected and major surgery undertaken. The saving grace for the accused is that Hong Kong takes seriously its obligation to ensure the safety and medical health of persons who were arrested in Hong Kong - whatever their background and whatever their nationality. Leaving aside the physical pain of the condition, the surgery and the recovery, given the nature of the operation, there must be a deeply personal pain as well. What I have decided to do is not add to the misery of the accused by sentencing her above the mathematical application of the sentencing guidelines, although there are powerful and cogent justifications for so doing. Had I done so, I would have considered going above the mathematical application of the sentencing guidelines by something of the order of between 12 and 18 months, and probably closer to the latter than the former.
I perfectly recognise the contradiction between the imperative of deterrence and the appropriate response to an obvious psychological and physical blow suffered by the accused as a result of the detection of cancer and its treatment. The two imperatives are largely irreconcilable and the sentence I have proposed to impose is a wholly
imperfect response to that. At the end of the day, the order of the court is that the accused be imprisoned for 22 years and 4 months.