COURT: Both defendants have pleaded guilty to one charge each of trafficking in a dangerous drug. Both on 29 June 2022, unlawfully trafficked in a dangerous drug at Hong Kong International Airport. The 1st defendant pleaded guilty to the 1st charge, where she admits unlawfully trafficking in 784 grammes of a solid containing 662 grammes of cocaine. The 2nd defendant pleaded guilty to the 2nd charge, where he admits unlawfully trafficking in 976 grammes of a solid containing 829 grammes of cocaine.
Both defendants pleaded guilty on 3 June 2024, and were committed to the Court of First Instance for sentence. Today, both confirm their pleas and admission of the Summary of Facts.
The facts are that both arrived on 29 June 2022 at Hong Kong International Airport from Brazil via Ethiopia. Together,
they proceeded to clear customs by walking through the green channel of the Customs Arrival Hall A. Customs officers intercepted them both and escorted them for customs clearance separately. Their belongings were searched and nothing illegal was found.
The 1st defendant was searched by a female customs officer and that officer found an object protruding from her vagina. It was suspected she had items inside her. She could not answer questions about it because she did not speak English. She was later escorted to hospital and a doctor removed a condom full of cocaine from her vagina.
Sometime later, she expelled or discharged 61 pellets confirmed to be cocaine. In total, she had concealed in her body and brought into Hong Kong 784 grammes of a solid containing 662 grammes of cocaine.
The 2nd defendant was also escorted to hospital after suspected drugs were found in the 1st defendant’s body. Customs and Excise officers suspected the 2nd defendant also had drugs in his body cavity. Sometime the following day, he discharged or expelled a total of 100 pellets containing cocaine. In total, he had concealed in his body and brought into Hong Kong 976 grammes of a solid containing 829 grammes of cocaine.
Although the 2nd defendant had told the Customs and Excise officers they were a married couple, they were in fact not married. The 2nd defendant admitted under caution that he was in financial difficulty and recruited by a male in Brazil to bring something to Hong Kong which he later found out was pellets he had to swallow just before he left Brazil. He did not know the 1st defendant but met her just before they left for the airport. They travelled to Hong Kong together. He knew that she had also swallowed pellets.
Both defendants admit that the average retail price in June 2022 was HK$836 per gramme for cocaine. The cocaine of Charge 1 had an estimated retail price of $655,424. The cocaine of Charge 2 had an estimated retail price of $815,936.
Mitigation
Both defendants are represented by Mr Mughal who has said all he can say on their behalf. The 1st defendant is now 38 years old, single and a Brazilian national. She has an adult son from a previous relationship. She had the sole responsibility for her son’s upbringing and financial support. She had been working in a supermarket selling fruit but lost this job due to the COVID pandemic. As a result of that her financial situation became untenable.
She had problems paying her mortgage but also had to help her son repay a gambling debt to save him from debt collectors and physical harm. An acquaintance suggested she could make quick and easy money by trafficking in dangerous drugs. She was told she would be paid US$10,000. This to her was a massive sum of money which would have solved her financial problems. Therefore, she agreed.
The 1st defendant has a clear record in Hong Kong and a letter from the Consulate General of Brazil based in Hong Kong confirms her clear record at home. This applies to the 2nd defendant as well.
The 2nd defendant is now 37 years old and also a Brazilian national. He is married with a child and ran his own gym working as a personal trainer before he agreed to come to Hong Kong. COVID affected his business and he effectively became unemployed. At about the same time both his parents suffered medical conditions that required treatment. Payment of those treatments were the 2nd defendant’s responsibility. His own wife contracted COVID and suffered side effects which required medication. He was unable to borrow money from friends or relatives. No one was in a position to help him financially.
An acquaintance offered him a job that would pay very well if he travelled outside the country. He was reluctant at first but agreed and was told he would be carrying drugs to Hong Kong. The best mitigation for both defendants is their pleas at the earliest opportunity. I have also read letters from the defendants themselves as well as from various members of their families at home in Brazil.
Father Wotherspoon has written a letter on behalf of both defendants. It appears that the defendants have tried hard to identify those that have lured them into committing these offences. According to Father Wotherspoon, all this information has been passed on to the police in Brazil.
However, Customs and Excise officers here have made enquiries with the police there according to the information supplied by Father Wotherspoon but were told there was no record of a police investigation having been initiated. Therefore, information Father Wotherspoon says has been passed on to the authorities there is of no practical use as far as mitigation is concerned.
However, I have had sight of an open letter or article written by both defendants separately explaining how they came to traffic drugs into Hong Kong, how remorseful they are, and warned others of the consequences. They were written as part of the anti-drugs campaign initiated by Father Wotherspoon.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance and the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
Those six steps include assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized, taking into account the latest guidelines in HKSAR v Huang Ruifang [2025] HKCA 234, the starting point for trafficking in cocaine between 500 and 1,500 grammes is 16 to 20 years’ imprisonment.
Mathematically, 1st defendant trafficking in 662 grammes of cocaine attracts a starting point of 16 years and 7 months’ imprisonment. The 2nd defendant trafficking in 829 grammes of cocaine attracts a starting point of 17 years and 4 months’ imprisonment.
I am satisfied that the role of both defendants in this case was that of a courier, that is a position at the bottom of the hierarchy of drug traffickers, therefore, the mathematical starting points should apply. In this case, a starting point of 16 years and 6 months’ imprisonment for the 1st defendant and a starting point of 17 years and 3 months for the 2nd defendant.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. The defendant’s culpability is increased or aggravated by the fact they imported a significant quantity of cocaine into Hong Kong. Bringing drugs across the border from overseas will attract an enhancement in a starting point. Considering the quantity of narcotics, I increase the starting points by 12 months.
Both defendants have pleaded guilty at the earliest opportunity and both are entitled to a full one-third discount. After that discount is applied, the 1st defendant is sentenced to 11 years and 8 months’ imprisonment. The 2nd defendant is sentenced to 12 years and 2 months’ imprisonment.
I will reduce their sentences by a further 1 month to take into consideration their contributions to Father Wotherspoon’s anti-drug campaign.
With the last step in mind, I consider these sentences, although substantial, to be fair, just, and balanced in light of the circumstances of the offence as well as each defendant.
Accordingly, I repeat, the 1st defendant for Charge 1 is sentenced to 11 years and 7 months’ imprisonment. The 2nd defendant for Charge 2 is sentenced to 12 years and 1 month imprisonment.