COURT: The defendant pleaded guilty to a charge of trafficking in a dangerous drug before a magistrate on 19 December 2024. It is alleged that on the 1st day of October 2023, at the Customs Arrival Hall in the Hong Kong International Airport, he unlawfully trafficked in 971 grammes of a solid containing 801 grammes of cocaine.
According to the Summary of Facts to which he admitted at the time of the plea, at about 10.07 pm on 1 October 2023 the defendant arrived in Hong Kong by flight from Addis Ababa, Ethiopia via Doha of Qatar, and he was intercepted at the “nothing to declare” channel of the Customs Arrival Hall of the Hong Kong International Airport. At that time he was pulling an unlocked grey suitcase.
He confirmed that the suitcase belonged to him and a bag of items wrapped with brown adhesive tape was found concealed in a false compartment at the bottom of the suitcase with some white powder found inside the bag. Subsequent examination of the powder confirmed that there were 971 grammes of a solid containing 801 grammes of
Cocaine.
He was arrested for the offence of trafficking in a dangerous drug. He said under caution that he did not know what the white powder found was. He said he got the suitcase from a driver in Ethiopia, and the driver was arranged by James in Ethiopia. He would call James at a hotel in Hong Kong, and James would arrange somebody to collect the suitcase, and he would receive a reward of US$500 and a free trip as a result.
The Customs officers also found the following items which include an itinerary containing the flight booking details, two boarding passes, one mobile phone, some US currency, Indian Rupees and Ethiopian Birr.
In a preliminary enquiry that was conducted in the small hours of 2 October 2023, the defendant stated that he would deliver the suitcase to the hotel and some unknown persons would collect it. The suitcase was passed to him by somebody, and it was James who arranged a driver to give him the suitcase in Ethiopia.
He said he did not know who James was. He named James as “Bro” in WhatsApp, and he gave the number of James. He said he did not know who the driver was. James told him in Ethiopia to bring a special suitcase to Hong Kong, and James would give him US$500 after his delivery. James also offered him a free trip to Hong Kong and gave him US$500 in Ethiopia. Upon arrival in Hong Kong, he would stay in the hotel and call James.
When the defendant was under the Customs custody, there was a phone call in the name of Ricky Boiha New who texted him via WhatsApp, asking him about the situation. With the defendant’s consent to conduct a controlled delivery operation, the Customs officer texted the other side and asked the other side to pick up the defendant at the airport as the defendant had lost his wallet and had no money to go to the hotel. The other side soon phoned the defendant, and the defendant told the other side the same.
Later the Customs officer made a few phone calls to another user “Bro”. The defendant told the other side to pick him up at the airport as he had lost his wallet. The other side asked him to wait and asked if there was anyone around him. The defendant said “no”, and the other side said they would make the arrangement to reach him later. Eventually, at about 3.20 am, a phone call was made to Ricky Boiha New. The other side said his friend thought it was risky and no one would pick up the defendant at the airport. So the controlled delivery operation was called off.
Later the defendant attended a video-recorded interview and he refused to answer any further questions without his lawyers.
The estimated street value of all the cocaine involved was about HK$972,942.
Upon screening of the defendant’s phone, some WhatsApp conversation between him and four users were discovered between the period of 1 and 2 October 2023. Those four users were called “Ricky Boiha New”, “Bro”, “James HK”, and “~Be Kind”.
The chat history of Bro mainly showed the text messages between the Customs officer and the other side after the defendant was intercepted.
The chat records with Ricky Boiha New revealed that the defendant was told that 900 grammes of something had been kept in the defendant’s bag. The defendant said “yes okay” and asked if the salary would be the same. Then Ricky Boiha New said “yes” and told him that the number of ~Be Kind (WhatsApp name) and James HK. They were the persons who would get in touch with the defendant once he arrived in Hong Kong.
He further mentioned that the person would meet the defendant in the hotel, and the defendant should give out 300 grammes in return for $5,000 and sent the share of Ricky Boiha New to his Indian account. The defendant should also give out 400 grammes and 200 grammes which would be shared by three persons, and the person would help the defendant to open the bag and do the measurement. The defendant in reply said it might be dangerous and the person might point at him when that person got caught of selling them. Ricky Boiha New reassured that the person would pay for the defendant’s hotel and food expenses. He also asked the defendant to delete all the other WhatsApp contents upon his arrival in Hong Kong.
After the defendant was arrested by the Customs officers, Ricky Boiha New sent a number of messages to check his condition and asked him to pick up the calls.
For the chats of James HK and ~Be Kind (WhatsApp name), James HK indicated that he was from Hong Kong and asked the defendant to text him when the defendant was on board. He also asked the defendant to let him know upon arrival in Hong Kong. ~Be Kind (WhatsApp name) checked if the defendant had departed from Addis Ababa yet.
Investigation also revealed that an online reservation under the name of the defendant has been made for an eight-night stay at an inn in Tsim Sha Tsui from 1 to 9 October 2023, as well as a three-night stay at a hotel in To Kwa Wan from 1 to 4 October 2023.
The defendant now accepts and admits that at the material time, he knowingly trafficked in all the cocaine seized by importing them into Hong Kong.
As for his background, the defendant is an Indian male who is now 28 years of age. He has no criminal conviction in Hong Kong. He is married and he has attained high school education level.
In mitigation, counsel Mr Trevor Beel informed me that he is an Indian national coming from the north-eastern part of the country. Counsel rightly admitted that the starting point should be enhanced because of the international element but clearly he was at the lowest end of the trafficking hierarchy because he was merely a courier or a drug mule.
Counsel drew my attention to the fact that he was willing to assist the Customs in arranging a controlled delivery of the drug. Counsel said he did all he could do, however because of the delay in time, the other side did not come to the airport because they considered that it would be too risky and the operation was unsuccessful.
Counsel also submitted a mitigating letter prepared by the defendant himself and copies of three unit certificates showing that the defendant had attended and completed three courses whilst he has been detained in the Correctional Services Department.
Counsel also drew my attention to a letter together with some supporting documents from Father John Wotherspoon showing that the defendant had publicised his predicament as a warning for others not to follow in his footsteps. Counsel rightly admitted whether further discount is warranted is a matter for the court’s discretion.
In the letter written to this court by the defendant himself, he informed the court his own background and said that he committed the offence because he had wanted to earn quick money for his mother’s health situation. The copies of the three unit certificates show that he had attended certain correspondence courses during his detention.
I shall now come to the letter prepared by Father Wotherspoon dated 15 March this year. Father Wotherspoon said that the defendant had helped out in his anti-drug campaign by submitting his story to describe how he got caught up in the world of drug trafficking and his warning to everyone to avoid that world at all costs. The story of the defendant was put onto some websites. Father Wotherspoon himself also visited Addis Ababa in January 2024
to pass on to the authorities and to the media the information obtained from the defendant. The Father also attended a media conference there. He presented a list of 10 drug mules imprisoned in Hong Kong who got their drugs from Addis Ababa in 2023, and the defendant was one of the 10 persons.
Father Wotherspoon was engaged in the lobbying for tighter security at Addis Ababa airport. He said that according to Ethiopia’s leading investigative journalist, his lobbying had some degree of success. So Father Wotherspoon urged his court to give the defendant a further reduction of 3 months for his multi-faceted participation in the anti-drug campaign.
As for the letters prepared by the defendant, I have before me an edited letter, edited from a combination of three letters prepared by the defendant. Apparently in this edited letter the defendant informed people about his own personal background. He said he was offered a job by a stranger who proposed a free trip to Ethiopia and then to Hong Kong, and was asked to carry one hand luggage from Ethiopia to Hong Kong. He asked what exactly was inside the luggage. The stranger assured him that he should not worry about anything. The stranger also promised to give him US$1,000 plus free tickets and a hotel stay. So he chose to take the offer and went on the trip out of greediness. Everything went smooth until he arrived at Hong Kong and was arrested.
The rest of the letter was about the sufferings he had or the hardship of being detained in Hong Kong, including the fact that his mother passed away while he was being remanded in custody. At the end of the edited letter he gave a warning to the readers against the dangers of drug trafficking, saying that the traffickers would offer free trips to different places and a guarantee of payment after the trip, and people would be given luggage filled with drugs. However, he said, the main goal of those people was to deceive people into transporting drugs around the world.
He claimed himself as a victim of the deception as if he was not aware of the nature of the drug in the luggage. In any event, he said that he wished everyone would try their best to avoid bad influences and learn from his lesson.
In sentencing the defendant, I do bear in mind the approach mentioned by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
In respect of the narcotic content of the drug involved in this case, it is 801 grammes of cocaine. According to the new guidelines in the case of HKSAR v Huang Ruifang [2025] HKCA 234, the tariff for trafficking in between 500 and 1,500 grammes of cocaine is 16 to 20 years’ imprisonment after trial.
So on an arithmetic calculation, the starting point for 801 grammes of cocaine narcotic should be 17 years and 2 months’ imprisonment.
As the Court of Appeal has made it very clear in different authorities, the arithmetic starting point is suitable for people like couriers or storekeepers who are at the lowest bottom of the drug trafficking hierarchy.
In respect of the starting point to be taken after consideration of a person’s role and culpability, I should take into account the fact that he was a drug mule being used in the international importation of the cocaine into Hong Kong, and the international element must be assessed as part of the role and culpability as the authority of Lee Ming Ho has stated.
In the case of HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal stated that the international element may be reflected in the roles and culpability of individual defendants but this is merely a factor or circumstance in the commission of the offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.
The Court of Appeal said that the international element applied to the sentencing of drug mules in Hong Kong because they were still fuelling the supply of drugs in Hong Kong and causing harm to individuals and society, regardless of the circumstances of their own personal backgrounds and involvement. Moreover, drug mules who had already been found guilty or pleaded guilty to knowingly traffic in dangerous drugs across borders must have fully understood their acts and the consequences.
So, taking into account his actual involvement in the importation of the drug into Hong Kong, that is the international element, in respect of this defendant I consider that the notional starting point after trial should be enhanced by 12 months to that of 18 years and 2 months’ imprisonment.
The defendant pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount. I do bear in mind what the Court of Appeal stated in the case of HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309. In that case, the court considered that the 33.3 per cent to 40 per cent discount range would be suitable for a defendant who has
made a genuine attempt to assist the authorities, his assistance being helpful but not assessed to be of particularly great value, for example, in an unsuccessful controlled delivery.
In granting the additional discount, the sentencing court should bear in mind that the assistance being rendered is both limited and unfruitful in nature. The Court of Appeal also said there would need to be something quite exceptional to justify a discount as much as 40 per cent which is the high watermark for this form of assistance.
In determining the discount to be accorded to an offender for his participation in a controlled delivery, the sentencing court should also have regard to the unique circumstances of the case and the relevant factors set out in the case of HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692. It is a matter within the sentencing judge’s discretion as to how these and other possible factors affect the discount to be given in a particular case.
In the present case, I take into account the fact that the defendant’s assistance was confined to participation in an unsuccessful controlled delivery which did not involve him in any significant element of risk.
Indeed, what he did was only to participate in a few telephone calls to the other side and to tell them about the situation that the Customs officer asked him to say or under the instruction of the Customs officers.
After the operation was aborted, the defendant declined to furnish further information as he refused to answer any questions in the subsequent video-recorded interview in the absence of his lawyer. The assistance he had offered cannot be said to have any particular great value.
Notwithstanding that his assistance was both limited and unfruitful, I am minded to accord him a small discount to encourage other offenders to co-operate with the law enforcement agencies. So the overall discount, including his early plea of duty, would be one of 35 per cent. That includes the discount for his plea of duty and also his participation in the unsuccessful controlled delivery. So after a 35 per cent discount, the sentence would be reduced to one of 11 years and 2 months’ imprisonment.
In respect of his participation in Father Wotherspoon’s programme, the Court of Appeal has considered this matter in the case of HKSAR v Kilima [2018] 5 HKLRD 88. The court pointed out that post-sentence participation in the Father’s campaign is a matter best left to the Executive.
However, sentencing judges are still allowed a discretion of a token discount for this factor, pointing out that it may still be in the public interest to encourage a prisoner’s efforts in this regard. That assessment must be in the absolute discretion of the sentencing court, an exercise with which the Court of Appeal will not likely interfere.
In the case of HKSAR v Cherop Caroline [2021] 3 HKLRD 904, the Court of Appeal pointed out that sentencing judges must look at the letters that had been written by a defendant and consider the substance of the letters as well as when and how they had been written, if they were properly to act on them in the exercise of their discretion.
The court also reiterated that a discount of up to 3 months represented the limit for taking part in the campaign and was exceptional. Judges are perfectly entitled in the exercise of their discretion to give no discount for this factor at all.
Where the assistance was rendered to the campaign after sentence had been passed, then it is a matter more properly to be addressed by the Executive.
Coming back to the present case. Having read the contents of the edited letter prepared from a combination of letters prepared by the defendant, I consider that it doesn’t contain any valid or useful information that may be fruitful in the investigation of the campaign in Africa or in Ethiopia.
Also, the fact that the Father mentioned his lobbying for tightening up the airport security control in Addis Ababa was something in a very general and vague form, and I am unable to assess the contribution of this defendant to the result of that particular lobbying.
Having considered the overall situation, I consider the fact that whether this defendant has made any meaningful contribution to Father Wotherspoon’s anti-drug campaign is a matter to be left for the Executive to address. Therefore, I decline to give him any further discount in respect of this matter.
So, there being no other mitigating factor, the overall sentence ultimately for this defendant is one of 11 years and 2 months’ imprisonment.