They had a retail value of over HK$12.8 million.
Upon his arrest, the defendant stated that the stuff was given to him by a Ms Wong at a hotel in South Africa and that he brought the stuff to Hong Kong for her with no reward. He denied any knowledge of the dangerous drug in the suitcase.
The issue at trial was whether the defendant knew that the suitcase contained the dangerous drug. The defendant’s case, which was rejected by the jury’s verdict, is that the drug was put inside his suitcase by his friend Cheng Man-kit who went to South Africa with him, without his permission.
The defendant was born in Hong Kong in April 1994. He is now 28 years old and he was 25 years of age at the time of the offence. He has completed Form 3 education and worked as a construction worker, earning about $26,000 a month at the time before his arrest. He has two previous criminal records relating to a total of five offences, which are not similar in nature.
In his mitigation, defence counsel Mr Ma urged this court to take into account his personal circumstances, including the fact that he has a 3-year-old son. Counsel urged this court to adopt a lenient sentence and also referred me to the reasons for sentence by Deputy Judge McWalters in respect of the co-defendant, Mr Cheng Man-kit, who had pleaded guilty. Counsel said that the defendant may be involved as a result of being set up by Mr Cheng, but I must point out that by the jury’s verdict they are satisfied that the defendant had knowledge of the existence of the drug in his suitcase, and with that knowledge he brought the drug back to Hong Kong.
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 [2021] 1 HKLRD 290. Having regard to the circumstances and the facts of the present case, I am satisfied that the defendant’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 drug concerned.
The tariff laid down for trafficking in heroin applies to cocaine. According to the sentencing guideline in the case of HKSAR v Abdallah [2009] 2 HKLRD 437, the starting point for trafficking in 4,000 to 15,000 grammes of cocaine is 26 to 30 years of imprisonment, subject to enhancement. The present case involves 9,836.4 grammes of cocaine narcotic. On a pure arithmetic approach, a starting point of 28 years and 1 month’ imprisonment would be appropriate.
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 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 aggravation, calling for the enhancement of the starting point.
As the Court of Appeal says in the case of Abdallah, for amounts over 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. Therefore, I enhance the starting point of 28 years and 1 month by 2 years for the international element, making a notional sentence after trial of 30 years and 1 month.
Taking into account the length of the sentence and all the matters raised in mitigation, I consider that a discount of 1 month is appropriate. Having said that, I must emphasise that I put no weight to the mitigation submission that he was being set up by Mr Cheng. No further discount is warranted because after all he is convicted after trial.
Therefore the defendant is sentenced to 30 years’ imprisonment.