HKSAR v. DA SILVA FATIMA DA CONCEICAO

HCCC 73/2025

[2025] HKCFI 3608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 73 OF 2025

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

The Charge

1.  On 27 February 2025, the defendant pleaded guilty in the magistracy to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The count involved 894 grammes of a solid containing 749 grammes of cocaine.  On the same day, the defendant admitted a Summary of Facts dated 27 November 2024 and he was committed to the Court of First Instance for sentencing.  Today, the Prosecution presented an amended Summary of Facts in which two additional paragraphs are included relating to the seizure of some exhibits from the defendant and the estimated retail value of the dangerous drugs seized. Before this Court, the defendant confirmed her guilty plea to the trafficking count and admitted the amended Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows. 

3.  On 19 November 2023, the defendant arrived in Hong Kong by a flight from Paris and was intercepted by a Customs Officer at the arrival hall of the Hong Kong International Airport.  A body examination was conducted on the defendant and a pellet containing dangerous drugs was found to be protruding from her vagina.  The defendant was arrested and sent to the hospital for a check-up.  During her hospitalization, the defendant discharged a total of 69 pellets of dangerous drugs from her body.  The pellets contained a total of 894 grammes of a solid containing 749 grammes of cocaine and their estimated retail value was HK$895,788.  The defendant admitted that she had unlawfully trafficked in all the dangerous drugs seized.

Background and mitigation

4.  The defendant was born in Portugal on 27 May 1984 and is now aged 41.  She was educated up to the second year of her secondary school as she became pregnant and had to drop out of school to look after her baby.  She has four children, namely, a son aged 21, and three daughters aged 16, 18 and 24 respectively.  In around 2020, she separated from her husband but they remained friends for the sake of the children.  She is now divorced but since her arrest, her ex-husband has been looking after their children and advising them. 

5.  Before her divorce, she worked as a kitchen assistant for three years, but the restaurant changed hands and all the staff were fired.  At that time, she was the sole breadwinner of the family.  The defendant had incurred debts as she had to pay the monthly rent herself and the school fees and daily expenses for the whole family.  Things became more difficult after she lost her job and she also had to look after her mother who is now aged 83.

6.  Her counsel, Ms Nisha Mohamed, informed the Court that the defendant now realizes the serious nature and consequence of the offence.  When she was offered $7,000 Euros by a criminal syndicate to take part in the offence, she was desperate for the money to pay off her debts and to cover the daily expenses for her family.

7.  Ms Mohamed submitted that this is a case in which a syndicate had taken advantage of a desperate and stupid woman who was in need of money and lured into committing the offence. Given her background and limited education, the defendant was easily influenced when she was told that nothing would happen and she naively believed it.  The defendant was informed that when she arrived in Hong Kong, she would be contacted and someone would collect the dangerous drugs from her.

8.  It was submitted on her behalf that her role was lower down the chain of the organization and her culpability was no more than that of a courier.  Ms Mohamed accepted, however, that the international element of the offence is an aggravating factor in the present case.

9.  Ms Mohamed pointed out that the defendant has a clear record in Hong Kong.  She has also participated in the programme run by Father John Wotherspoon by putting up two posts (one in English, the other in Portuguese)  to inform others of the danger and outcome of trafficking in dangerous drugs.  The defendant hopes that her situation would be a lesson for others.

Sentence

10.  In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

11.  The first step is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question.  In the present case, Ms Mohamed accepted that with the total quantity of 749 grammes of cocaine, the starting point should be a term of about 17 years’ imprisonment: see HKSAR v Huang Ruifang [2025] 2 HKLRD 138 at §62.  That starting point is also confirmed by Ms Winnie Mok, counsel acting for the prosecution.

12.  The second step is to assess the role and culpability of the defendant based upon the Summary of Facts before the Court.  In short, as instructed by a syndicate, the defendant concealed the dangerous drugs in her body and brought them to Hong Kong.

13.  The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role was no more than that of a courier.

14.  The fourth step is to deal with aggravating factors, if any.  In the present case, the international element of the trafficking offence is an aggravating factor: see HKSAR v Chung Ping Kun [2014] 6 HKC 106.  In the particular circumstances of this case, I shall enhance the starting point by 18 months to 18 years and 6 months’ imprisonment to reflect this aggravating factor.

15.  The fifth step is to consider the mitigating factors, if any.  I have now carefully considered all the helpful mitigation submissions made by Ms Mohamed on behalf of the defendant, both orally at the hearing today and on papers.  The strongest mitigating factor in the defendant’s case is her guilty plea which was entered at the earliest opportunity.  Because of that, and by virtue of her participation in Father Wotherspoon’s programme and other circumstances set out on papers, I will give the defendant a total discount of 38% and that brings the starting point of 18 years and 6 months down to a final sentence of 11 years and 5 months’ imprisonment.

16.  Lastly, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 11 years and 5 months.

Exhibits

17.  An Order in terms of the Prosecution’s application, not objected to by the Defence, was granted to dispose the exhibits.