HKSAR v. RASHIDI MDENGE RUKIA YUSUFU (female)

HCCC 311/2018

[2019] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 311 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 16 November 2017, Rashidi Mdenge Rukia Yusufu, the accused, arrived in Hong Kong. She travelled from Tanzania to Ethiopia. Following her arrival at Hong Kong International Airport, she was subjected to a customs inspection at the Customs Arrival Hall.

The luggage of the accused was inspected and officers of the Customs and Excise Service found 1.99 kilogrammes of a solid containing 1.69 kilogrammes of cocaine in her luggage.

The accused was arrested and cautioned and, in the result, she was taken before a magistrate on 18 November 2017. Eventually, on 24 September 2018, she pleaded guilty in committal proceedings before a magistrate and admitted the Summary of Facts. She was committed for sentence to this court.

Facts admitted

I have already related aspects of the search. The accused was cautioned and stated that she came to Hong Kong for shopping and that she would stay at the Maharaja Guesthouse in Chungking Mansion in Tsim Sha Tsui. She told Customs that she had arranged to meet somebody in Hong Kong in relation to the disposition of the suitcase.

The accused was also found with the following:

(1) An itinerary suggesting that she was to leave Hong Kong on 23 November 2017;

(2) US$1,870;

(3) HK$634;

(4) 10,000 Tanzania shillings, which on my enquiries at the current exchange rate that is worth about HK$34;

(5) Mobile phone; and

(6) A document suggesting a booking confirmation at the Maharaja Guesthouse.

The accused agreed to participate in a controlled delivery on the day she was intercepted. She went through the process of contacting her contact via WhatsApp. All of this was done under the supervision of officers of the Customs and Excise Service. As a result, she was given the telephone number in Hong Kong and it was learned that “Tony” would come to meet the accused. Indeed, Tony did call later and he told her he would come to the hotel in about an hour, but nobody arrived. The accused called Tony again and Tony told the accused Tony’s girlfriend would come to the hotel. Arrangements were made, but the upshot of that was that the accused and the girlfriend were to meet in the hotel.

Later that day, at about 9.20 pm, Tony called the accused again to advise that his girlfriend had arrived in the lobby of the hotel. Customs officers gave the suitcase with the drugs inside to the accused and accompanied the accused to the lobby. She left the hotel with the suitcase and a Filipino, Ms Gonzales, met and greeted the accused at the hotel entrance. She hugged the accused. Ms Gonzales then brought the accused to a taxi outside the hotel and just as Ms Gonzales was about to board the taxi, she was intercepted by the officers of Customs and Excise Service and was arrested.

Sometime later, the accused underwent a video-recorded interview. She told the Customs and Excise Service that:

(1) She had a fiancé and a 5-year-old daughter;

(2) She lived in Tanzania;

(3) She ran a small supermarket in Tanzania and that the business was not going well;

(4) She had an average income of US$400 a month, but she owed a debt of about US$2,000 and she had to pay US$150 for a loan each month;

(5) She had no savings;

(6) She had to pay rent of about US$50 per month;

(7) She still had to support her family including her mother and sister;

(8) She was educated to Secondary 4 level;

(9) She said she went to the market in Addis Ababa in Ethiopia when she was in transit. At the market, she met a Nigerian acquaintance by the name of “Frank”. Frank said he sought her help to bring an Ethiopian traditional dress for a friend of Frank’s in Hong Kong. The accused expressed she was a little doubtful about that because Frank told her not to check-in the luggage as the luggage might be missed.

(10)Frank also told her that his friend would give her some phones and US$7,000 and ask her to bring them back to Ethiopia when she returned by the same route. She said that Frank had a friend working in the airport so she could pass the items to Frank’s friend during the one-hour transit time;

(11)In the result, she was persuaded to trust Frank.

(12)She did not know who would pick up the clothes in Hong Kong and did not ask for information of the contact person. The arrangement was she would contact Frank when she was in Hong Kong and Frank would provide her with the number;

(13)She also told Customs officers that she was aware that a friend of hers had been arrested in Macau for carrying cocaine in her suitcases. Her concerns were alleviated by the fact that the suitcase she was carrying was unlocked;

(14)She then described the process of the controlled delivery; and

(15)She said she did not receive any reward for carrying the drugs.

The estimated street value of the cocaine is about $1,820,000 as of November 2017.

The accused now admits her guilt by her plea to the charge and accepts that she was in possession of the cocaine, knowing it to be cocaine, and it was for the purpose of unlawful trafficking.

Personal background and mitigation

The accused is a holder of a Tanzanian passport. She is born in Tanzania and is now 26 years of age. She has no criminal record in Hong Kong. The balance of her background is set out in the video-recorded interview that I have just referred to.

Of particular significance is her willingness to assist in the controlled delivery process. This has already been described. In addition, the accused gave a statement known as a non-prejudicial statement which is a statement with the intent of assisting the authorities. Available to this court is a letter dated 6 June 2019 outlines, amongst other things, the content of the non-prejudicial statement. It is clear that the statement is of no practical use to the prosecution. The bottom line is assistance to the authorities began and ended on the date of arrest. The information gained post-arrest has come to nothing.

I should also add under this heading that since being incarcerated, she has joined a programme operated by Father John Wotherspoon and has materially assisted in that programme. I will speak more of that in due course.

Sentencing principles: Trafficking in dangerous drugs

For many years, the community of Hong Kong has taken a severe view of drug-trafficking—particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive and ridding oneself of the addiction is, to say the very least, an arduous process and sadly history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences to the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences—sometimes serious ones—for the families of those who become addicted to cocaine.

The view of the community is reflected in the maximum sentence provided by section 4 of the Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the level of those sentences traditionally imposed for drug-trafficking. The policy underlying the approach to sentencing for drug‑trafficking cases is to impose a deterrent sentence. To this end, the courts are provided sentencing guidelines for various forms of dangerous drugs, including the drug the subject of the charge in this case.

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [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 Lak Tak Ming & Others (above) are appropriate for cocaine. The correctness of the guidelines in cocaine was confirmed by the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. Indeed, the Court of Appeal in HKSAR v Abdallah recognised that the earlier guidelines were inadequate for larger quantities and that case provided guidelines of 600 grammes and above.

The applicable sentencing guidelines provide for a sentence for quantities between 1.2 kilogrammes and 4 kilogrammes of cocaine to attract a sentence, if the accused had been convicted after trial, of between 23 and 26 years’ imprisonment.

Enhancement for the international element

The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlines this is deterrence. In HKSAR v Abdallah (above) and HKSAR v Chung Ping Kun [2014] 6 HKC 106, the court suggested that an appropriate enhancement where the drugs involved was between 500 grammes and 1,000 grammes would be between 1 and 2 years. The plain implication of that decision is that for quantities above 1,000 grammes a greater enhancement may be called for.

Assistance to the authorities

In this case, the accused has provided assistance by participating in a controlled delivery. It has always been the position at common law that a defendant convicted of a crime will receive credit against his sentence for any assistance which has been rendered to law enforcement agencies. And I refer there to Z v HKSAR (2007) 10 HKCFAR 183, 1 HKLRD 977, 2 HKC 265; R v AXN etc [2016] EWCA Crim 590, [2016] 1 WLR 4006, [2016] 2 Cr App R(S) 33.

The policy of the courts of Hong Kong in this regard was articulated in Z v HKSAR where Li CJ held:

“It is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant has given to the authorities and usually to give an appropriate reduction from the sentence which the defendant would otherwise have received. The assistance is most often given by the defendant after his arrest for the offence for which he is being sentenced (“post-arrest assistance”). There may be occasions where the assistance is given by the defendant before his arrest (“pre-arrest assistance”).”

Li CJ held that the rationale for the policy is:

“The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime... Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.

The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one.”

Li CJ held that in order to obtain a recognition by way of a reduction of sentence the assistance should be “useful assistance”. In this regard, Li CJ suggested the courts could look to a number of factors including:

“The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability to the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.”

The courts have also directly considered the position of an accused who participates in what is commonly known as a controlled delivery. In HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal Justices Lunn VP and Macrae JA held that there is no fixed percentage or identifiable range of percentage to be applied to such assistance. The court said that the reason for this is because there is a wide range of circumstances which could apply in individual cases of assistance with this form. The court said that those would include:

(i) the nature and effect of any voluntary participation;

(ii) the outcome of the assistance, was it successful in bringing to justice persons who would not otherwise have been brought to justice;

(iii) the degree or extent of assistance which has been provided; and,

(iv) the degree of risk [that the accused has] exposed himself or his family.

The matter was further considered by the Court of Appeal in HKSAR v Lo Sze Tung Stephanie CACC 190/2017, [2018] HKCA 241. In that case, the Court of Appeal considered the situation of the controlled delivery. The court observed:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage offenders to similarly cooperate with our law enforcement agencies.”

In the foregoing passage “these features” is a reference to assistance on the part of the accused person.

The court went on to consider the principles identified in Nkwo Nnaemeka Darlington (above). The court concluded as to the discount for unsuccessful controlled delivery that it would take something “quite exceptional” to justify awarding a discount as much as 40 per cent.

There is also the assistance that the accused has given after she was incarcerated through the programme run by Father John Wotherspoon. In this, she is not a lone voice but has in effect joined a chorus of voices. The authorities recognise that some discount, possibly as much as 3 months should be given for such assistance.

Discount

The authorities also demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point in the amount of 33 per cent.

Application of principles to the facts of the case

Starting point

I am prepared to accept that the accused can be characterised as a courier. Nevertheless, the quantity of drugs involved in this case is quite substantial. Applying the guidelines to the amount found in the luggage of the accused, a sentence of 23 years and 6 months is appropriate.

To this starting point must be added an enhancement which is an element of deterrence for the fact that the cocaine in question was brought across international borders into Hong Kong. I do not think that given the substantial starting point that the accused is already facing that a mathematical approach to the enhancement is appropriate. Accordingly, I enhance the sentence by two years.

The overall result is a starting point of 25 years and 6 months.

Assistance to authorities

The assistance to the authorities has two major components. The first component involved the accused contacting “Frank”, who led to Tony in Hong Kong. Indeed, under the supervision of the Customs and Excise authorities, she maintained contact with those individuals. Arrangements were made through Tony to pick up the drugs in the lobby of the hotel where the accused was calling from.

The second major component of this assistance was agreeing to carry the relevant suitcase to the lobby to meet the pickup who turned up to be Ms Gonzales. In this regard, the agreed facts reveal the accused participated in meeting up with Ms Gonzales and taking the drugs to a waiting taxi. There, the controlled delivery was terminated with the interception and arrest of Ms Gonzales.

Pausing there for a moment, I am informed by the prosecution that it is accepted that throughout the controlled delivery process the accused was acting in good faith.

What the accused did by her assistance was set in train a potential line of enquiry which may have uncovered a syndicate involved in the distribution of a highly dangerous drug in Hong Kong. As to Ms Gonzales or Tony, it appears no action took place. What investigation took place is not clear, but it is plain on legal advice that Ms Gonzales was not prosecuted.

I proceed upon the assumption that Frank presently remains happily ensconced in Addis Ababa, free to engage witting or unwitting travellers to Hong Kong to carry further drugs into this Territory.

I do not know the nature or extent of the danger faced by the accused in prison. I readily draw an inference that Frank and Tony and Ms Gonzales were part of an organised syndicate to import dangerous drugs into Hong Kong. I proceed on the assumption that the syndicate does not have a great deal of a sense of humour about losing 1.6 kilos of cocaine. Whether that has exposed the accused or her family to danger outside Hong Kong is speculative, but it would not take much persuasion for me to believe that there remains an element of risk, at least for the accused.

The simple fact of the matter is that the accused assisted as best she could. Against the background of the fact the Customs and Excise officers made the decision to terminate the controlled delivery at the taxi rank at which stage the assistance of the accused was terminated by that decision, she had done all she could have done in the circumstances. The termination of the delivery at that stage ensured the safety of the accused and, while I have no doubt that the Customs officers undertaking the controlled delivery were anxious to ensure the safety of the accused, I regard the second component of the controlled delivery as having an element of danger in it and I am not prepared to assume that things necessarily would have gone as well as they did. There is always an element of risk in these operations despite the best and most professionally‑laid plans. By undertaking this assistance, despite the monumental stupidity that is a feature of the conduct of the accused in bringing the drugs to Hong Kong, the accused has done the best she can for herself and her family. In undertaking the second component of her assistance, she has displayed a substantial degree of assistance. She was a stranger in a strange land dealing with unfamiliar people in unfamiliar circumstances. The court must recognise and encourage such assistance.

I am constrained by authority in the analysis of what discount to accord to the accused for her participation. It is said that in order to get the level of discount to 40 per cent, which is the discount taken together with the ordinary discount for pleading guilty, that it would take something exceptional. Constrained as I am, I think 40 per cent is the appropriate discount. As I say, involving an element of courage, the accused did all she could according to a timetable essentially dictated by her captors.

Father John

I am satisfied that she had joined his programme and that she is an active participant in it. The programme is aimed at dissuading people, particularly in the continent of Africa, from bringing quantities of drugs to Hong Kong. Given the economic circumstances that people such as the accused find themselves in, it is easily understandable how tempted they might be to make quick money to alleviate those economic circumstances.

Father John, in his programme, is active in trying to inform such persons of the substantial risks that they take when they undertake such activities. It appears that he has had some success in this regard. How much of that success is actually attributable to the accused is neither here nor there. What she has done is join the chorus. She is one of many voices actively seeking to dissuade traffickers. She has done so during her incarceration to date. Of that, I am firmly satisfied.

However, that assistance cannot be a fairweather friend. It has to continue. It should open to that of the executive authorities to further reduce her sentence if she continues in the programme. However, I cannot discount her sentence for future cooperation. All I can do is in effect put something of a down payment on that cooperation to reflect assistance to date and possible assistance in the future, and I fix 3 months’ discount for that.

Overall discount

The accused is entitled to a discount of 33 per cent for pleading guilty at the earliest practical moment. I think a further 7 per cent is at least appropriate given as I say, the accused did all she could and displayed an element of courage in doing what she did to assist the authorities. Accordingly, the overall discount is 40 per cent plus the 3 months.

Could you please stand up, accused.

This court cannot ignore the serious crime that you have committed. You have brought a very large quantity of drugs into Hong Kong across an international border. You have provided authorities with assistance and the ordinary discount to which you would have otherwise been entitled by your plea of guilty has been enhanced. I have also reduced the sentence by 3 months for your involvement with Father John in the way I have described.

The order of this court is that you be sentenced to 15 years’ imprisonment.

Thank you. You may be seated.