Introduction
The defendant pleaded guilty in the Magistrates’ Court to one charge of trafficking in 552 grammes of a solid containing 393 grammes of cocaine, and is committed to this court for sentence. She confirms her plea and her agreement to the Summary of Facts before me.
Summary of Facts
Briefly stated, this is a run-of-the-mill type of trafficking by way of internal concealment.
On 17 March 2020, the defendant arrived at the Hong Kong International Airport from Abidjan via Addis Ababa. She was refused landing by the immigration authorities and was taken to the Custom Arrival Hall for customs clearance. At the time, she had with her cash of US$2,000 and CFA Franc 5,375 and two mobile phones.
The defendant was later taken to the hospital for examination, where she had first discharged nine pellets of suspected dangerous drugs.
Under caution, the defendant admitted then that she had agreed to swallow the pellets and came to Hong Kong for a reward of CFA Franc 5 million at the request of a person whom she met at Ivory Coast. Subsequently, the defendant discharged 50 more pellets.
Upon later analysis, all the pellets which the defendant discharged were found to contain the cocaine, which was the subject matter of the charge, with an estimated retail value of HK$624,864.
Enquiries with the airline show that there was an air ticket for the flight on 24 March 2020 from Hong Kong to Abidjan via Addis Ababa and that the air ticket was booked in the defendant’s name.
Antecedent
The defendant is a Beninese and is now aged 53. She received no formal education and claims to be illiterate. She is married with four children. Her parents had passed away. She works as a hawker, earning about CFA Franc 50,000 a month.
Sentence
Based on what is known in the Summary of Facts, I am satisfied that the defendant played the role of an international drug courier, and it is on this basis that she is to be sentenced (HKSAR v Herry Jane Yusuph).
According to Attorney General v Pedro Nel Rojas, the sentencing tariffs for trafficking in cocaine are the same as those for trafficking in heroin. The tariff applicable to the present case is laid down in R v Lau Tak Ming & Anor, where it says trafficking in heroin narcotic between 200 and 400 grammes attracts a sentence of between 12 and 15 years’ imprisonment. Therefore, the notional starting point for trafficking in 393 grammes of cocaine narcotic, calculated by means of an arithmetical approach, which is appropriate for the case of a courier, is 14 years and 10 months’ imprisonment.
I accept that the defendant was not the organizer of the crime and she, like many others in a similar situation, was knowingly and willingly used by others as a drug mule in return for a reward. Although I readily accept that sentencing a drug mule is not a “discretionless exercise”, consistency in sentencing is an important consideration.
The defendant obviously knew that what she was asked to do was illegal, for she had been promised a handsome reward. She was not acting under any duress or deception or any other extenuating circumstances. That she might have underestimated the seriousness of the matter cannot, in the circumstances, afford her a reduction in sentence.
As regards the fact that the defendant had assumed a personal risk to her health by swallowing the drugs, as a matter of principle, I do not agree that the defendant should be given a discount for this. First, trafficking by internal concealment could make detection more difficult. Secondly, it does not make the offence anything less serious, and the harm that could be done to the society would be the same whether the trafficking was committed by way of internal concealment or otherwise. Thirdly, wrong message could be sent to the drug community if a reduction of sentence was given for drug couriers in case of internal concealment, which may lead to more similar offences of the type.
Having considered the facts of the present case and the defendant’s personal circumstances, I can see no valid reason or distinguishing features so that court may depart from the arithmetical starting point in the present case. Therefore, I adopt 14 years and 10 months’ imprisonment as the notional starting point of the charge.
Furthermore, because of the presence of international element in this case, which is an aggravating factor, in view of the quantity of the cocaine narcotic involved, I add 8 months on top of the starting point (see HKSAR v Chung Ping Kun). It could have been more. Therefore, in case of a trial, the overall starting point would be 15 years and 6 months’ imprisonment.
For her plea, the defendant is entitled to the customary discount of one-third, after which the sentence is reduced to 10 years and 4 months’ imprisonment.
It is well-established that financial pressure and difficult family circumstances can hardly assist an accused in case of a serious offence such as the present one (HKSAR v Somphaksorn Lamyai [2009] 1 HKC 437 and HKSAR v Lau Pang [2004] 3 HKLRD 565). However, as an act of mercy, in view of the exceptional difficult family circumstances of the defendant back in her home country, by the exercise of my limited discretion, I give her an additional two-month discount.
Therefore, the defendant is sentenced to an imprisonment
term of 10 years and 2 months.