COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 19 September 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his plea and his agreement to the Summary of Facts through counsel.
The particulars of the charge state that on the 16th day of November 2023, at Customs Arrival Hall B, Passenger Terminal Building, Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 473 grammes of a solid containing 375 grammes of cocaine.
The Summary of Facts admitted by the defendant provides, inter alia, as follows.
In the afternoon of 16 November 2023, the defendant arrived at the Hong Kong International Airport via Doha, Qatar. At about 3.40 pm that day, the immigration officer conducted secondary examination of the defendant who claimed that he had intended to visit Hong Kong for seven days to purchase
computer accessories for resale in Kenya. However, he was unable to show sufficient knowledge of his computer retail business in Kenya. As his purpose of visit to Hong Kong was suspicious, he was refused permission to land. The defendant was then escorted to the Customs Arrival Hall B of Passenger Terminal 1 for customs clearance. The customs officer suspected that the defendant might have drugs concealed inside his body. He was sent to the North Lantau Hospital for medical examination. The doctor at the Accident and Emergency Department of North Lantau Hospital confirmed that foreign objects were found inside the defendant’s body. The defendant was then arrested. On 17 November 2023, the defendant excreted a total of 48 plastic pellets containing a total of 473 grammes of a solid containing 375 grammes of cocaine. The defendant was cautioned again on that day after he had excreted 24 of the pellets. Under caution, he stated that:
(1) he knew that they were drugs but he did not know what kind of drugs they were;
(2) Sam had given them to him in Kenya and asked him to bring them to Hong Kong. Sam had given him award of US$1,300; and
(3) he had swallowed 48 pellets.
Regarding the personal background of the defendant. He is the holder of a Kenyan passport. He is 44 years of age. He has a clear record in Hong Kong. He is married and has three children. He was a taxi driver in Kenya and he had attended secondary school in Kenya. The defendant’s wife suffers from dementia. The defendant’s younger brother suffered from meningitis and his medical expenses were high. The defendant had to pay the medical expenses incurred for his younger brother, as a result the defendant had a heavy financial burden in Kenya. The defendant worked as a taxi driver in Kenya. He knew a regular customer while working as a taxi driver and this customer introduced the “trafficking job” to him and he made a foolish choice to bring the drugs to Hong Kong.
The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned. The second step is an assessment of the role and culpability of the defendant based on evidence before the court. The third step is to identify where in the relevant band of the guidelines the defendant comes. It may be necessary to go outside the band to reflect the particular circumstances of the offence and
the role of the defendant. The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matter of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”. The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just, and balanced sentence”.
Regarding the first step, for 375 grammes of cocaine, the applicable guideline tariff band is that of 12 to 16 years’ imprisonment: see HKSAR v Huang Ruifang [2025] HKCA 234, at paragraph 62.
Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier, in that he delivered the drugs for someone from Kenya to Hong Kong for a reward. However, this case clearly involves an international element. This is an important factor when assessing the role and culpability of the defendant in order to identify the appropriate starting point for sentence. I have to bear in mind that the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes great harm to the community: see HKSAR v Lee Ming Ho, ibid, at paragraph 74.
Third, for 375 grammes of cocaine, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 14 years and 4 months’ imprisonment. For the international element of this case as held above, I would increase the notional sentence after trial by 10 months, taking it to 15 years and 2 months’ imprisonment.
Fourth, I consider that there is no aggravating factor which would enhance the notional sentence after trial.
Fifth, as a matter of discretion, I would afford the defendant a discount of 2 months for his participation in Father Wotherspoon’s programme. There is some evidence that the information provided by the defendant is useful. This would take the notional sentence after trial down to 15 years’ imprisonment.
I consider that the only other mitigating factor which may reduce the defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount.
Accordingly, the defendant’s sentence is reduced to 10 years’ imprisonment.
Finally, I consider that a sentence of 10 years’ imprisonment is a fair, just, and balanced sentence.
Defendant, you are accordingly sentenced to 10 years’ imprisonment.