On 19 November 2018, the accused arrived at the Hong Kong International Airport, having travelled to Hong Kong from Kenya via Ethiopia. In the transit area of the airport, the accused was intercepted by officers of the Customs & Excise Service. At the time, she was on her way to Macau. They searched the accused and during the course of a strip search found a single pellet which had fallen from the underpants of the accused. A field test conducted by one of the officers revealed that the content of the pellet was cocaine and the accused was arrested and cautioned. She was taken first to North Lantau Hospital where, on examination, she was found to have foreign objects in her body. She passed a series of pellets, 66 in all, containing cocaine, and that forms the subject matter of the charge. The active ingredient in the pellets, that is, the cocaine, amounted to 644 grammes.
At trial, it was admitted that the accused travelled first from Nairobi in Kenya to Addis Ababa in Ethiopia. It is common ground that in Addis Ababa she swallowed the pellets, the subject of the charge. Her case at trial was she did not know what the substance was inside the pellets and, in any event, she had been the subject of duress. The verdict of the jury demonstrates that she was aware that she had swallowed the pellets and that she was not the subject of duress.
Antecedents and mitigation
The accused is a holder of a Kenyan passport. She is 32 years of age. She has two children aged about 9 and 13. In Kenya, she lived in Nairobi and worked as a painter.
She is a person of no previous convictions in Hong Kong. In the course of her trial, she testified she was a person of no previous convictions elsewhere. For the purpose of determining sentence, I accept that this is true and treat her as a person of no previous convictions at all.
Sentencing principles
Sentencing for trafficking in cocaine
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. There are consequences - sometimes serious ones - for the families of those who become addicted to cocaine. On the premise the drugs would have been sold and distributed in Macau, the fact that they will not place a burden on the community and health services of Hong Kong is of no comfort. The community of Macau would have to carry the burden of that.
Hong Kong has an interest in supressing trafficking in dangerous drugs and that interest does not end at our borders and does not end simply because the drugs in question were destined for somewhere other than Hong Kong.
The drugs in question were going to another part of the People’s Republic of China. Even if the drugs were destined for a place outside the PRC, Hong Kong has been for many years the signatory through the British and colonial times and now the People’s Republic of China, of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Drugs to fight the scourge of trafficking.
The view of the Hong Kong community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The underlying approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drug, the subject of the charge in this case.
The first step in determining the appropriate sentence is to identify the harm concerned. Adopting the analysis in HKSAR v Herry Jane Yusuph [2020] HKCA 974, the first and most obvious harm is the serious nature of cocaine as I have already identified.
As I have already identified, the fact that this was destined for another place simply means that the harm might be experienced elsewhere as opposed to Hong Kong, but that does not diminish the harm. We have both international obligations in preventing and suppressing drug trafficking, and plainly, the harm in narrow terms is the use of Hong Kong as a stepping-off point for trafficking elsewhere.
However, that is to miss the point. We are as much concerned in the consequences of ingestion of cocaine in Macau as we would have been if the cocaine had been destined for the streets of Hong Kong.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLRD 370.
In Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. In that case, the Court of Appeal considered guidelines for cases such as the present one, where a quantity greater than 600 grammes was found in the possession of the accused.
The applicable sentencing guidelines for a sentence for quantities between 600 to 1,200 grammes of cocaine attracts a sentence of between 20 and 23 years.
Enhancement for cross-border trafficking
The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlies that is deterrence. The authorities which articulate this policy include HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, HKSAR v Abdallah (above), and HKSAR v Chung Ping Kun [2014] 6 HKC 106.
In HKSAR v Chung Ping Kun, § 9, after an extensive review of the authorities, the Court of Appeal suggested that an appropriate enhancement where the drugs were involved were between 500 grammes and 1,000 grammes would be between 1 year and 2 years. The fact the drugs may have ended up in Macau as opposed to landing in Hong Kong does not diminish this as an aggravating factor.
Application of sentencing principle
The cocaine involved is 644 grammes. The appropriate sentencing band is 600 grammes to 1,200 grammes. The sentencing range is, as I have observed, based on the decisions of the Court of Appeal, a range of 20 to 23 years’ imprisonment.
The accused is, on any view, a courier, having carried the drugs from Ethiopia to Hong Kong, although destined for Macau. On that basis, adopting the analysis in HKSAR v Herry Jane Yusuph (above), the accused has to be sentenced on the basis she is a courier. Although there is no direct evidence on the topic, I am sure, based on the evidence adduced at the trial, that she was carrying the drugs for a reward. In particular, I point to her agreement with the proposition which was put to her in the WhatsApp communication, where it was said that the greater number of pellets she consumed, there would be an equal or greater reward. To this proposition, she answered, “Okay”. I reject her evidence as untrue, that she was simply using the “Okay” in the sense of the modern form of being dismissive “whatever”. I assess the culpability of the accused as being that of a courier for reward.
On that basis, although a mathematical calculation of guidelines, 644 grammes, might attract a sentence more than at the lowest end of the relevant sentencing band which is propounded by the Court of Appeal for cocaine. Nevertheless, I propose to apply the lowest end of the band. On that basis, subject to an enhancement for bringing the drugs across international borders, the starting point for analysis of sentence would be the imposition of a sentence of 20 years. As I have already noted, the range of sentence normally considered appropriate to enhance the starting point of 20 years for taking the drugs across the border into Hong Kong would be 1 year. That would make the sentence appropriate for this accused to be set at 21 years’ imprisonment.
The accused does not have the benefit of mitigation that a plea of guilty might have accorded to her. That might have reduced the sentence that she faces quite substantially. That she has been exploited is a matter about which I am in doubt. But, given the clear policy of the courts, the fact of that exploitation is not something that can mitigate an otherwise appropriate sentence. Many couriers are persons who are exploited and that is the cruel and remorseless fact of international trafficking in dangerous drugs.
I am sure that this is yet another case of a person of apparently previous good character being lured by the promise of what to her was probably a substantial amount of money to carry drugs from Africa to Hong Kong. She leaves behind a family in Kenya, including two young children, who are probably of an age where they need their mother most right now. I can readily appreciate the temptation visited upon the accused in this case. Perhaps, the worst part of all of this is the person who is exposed to the most risk is the person likely to be rewarded the least. The number of cases of people from one part of Africa or another who go through Addis Ababa into Hong Kong that I have seen in recent times is beyond depressing. Even if I could forget for the moment the potential harm that cocaine may do to the ultimate user, I see before me somebody who, because of this sentence, will have wasted what could be the best years of their life and have denied her children the love and attention of a mother.
Emma, Janet, Margaret and Mercy and, assuming he exists, the man who assisted in the swallowing of the pellets, are not in jail. Doubtless they will get paid for their efforts. The accused will pay, on a personal basis, a terrible price for being a pawn in a multi-million dollar conspiracy to traffic. Emma, Janet, Margaret and Mercy and, assuming he exists, the man who assisted in the swallowing of the pellets, are probably sitting there in respectively Nairobi and Addis Ababa laughing. They and their masters can shrug off the loss of almost a million dollars’ worth of cocaine as a business loss. Another drug mule does not matter two cents to them. While they are laughing, I am sure beyond any doubt that I know of two young people who are probably at this moment crying.
Disposition
Would the accused please stand up?
The arithmetic of sentencing in cases like this may, on a superficial analysis, be cruel and heartless. However, such are the dangers of drugs such as cocaine that deterrence is plainly necessary. Indeed, had one of the pellets burst while it was inside the body of the accused, this case may have ended up in the Coroner’s Court rather than the High Court. The least sentence that the court can pass on the accused is that of 21 years, and that is the order of the court.