HKSAR v. PHIRI CATHERINE

HCCC 444/2024

[2025] HKCFI 1516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 444 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before Magistrate Ms. Minnie Wat to one count of trafficking in a dangerous drug[1] and was committed, on 19^th December 2024, to the Court of First Instance for sentence. She confirmed her plea and admission to the Summary of Facts before me, and her conviction was duly recorded.

2.  Particulars of the charge are that the defendant on 22^nd October 2023, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,090 grammes of a solid containing 924 grammes of cocaine.

FACTS

3.  The defendant arrived at the Hong Kong International Airport on a flight from Johannesburg, South Africa via Addis Ababa, Ethiopia on the charge date.  

4.  The defendant spoke fluent English, but was unable to provide details of why she was in Hong Kong.  She was refused entry by the Immigration Department, and escorted to Customs Arrival Hall B at 4:35pm for custom clearance.

5.  Nothing suspicious was found on the defendant’s person or in her luggage.  Customs Officers, however, suspected that she had dangerous drugs inside her body, and took her to North Lantau Hospital for medical examination at 7pm.

6.  At around 9pm, doctors confirmed presence of foreign objects inside the defendant’s body cavity.  The defendant was immediately arrested and cautioned for trafficking in dangerous drugs.  

7.  Under caution, the defendant claimed that the pellets inside her body were given to her by a “Henry” in Ethiopia.  She was told that some unknown person would contact her about them when she was in Hong Kong.  She did not know what was inside them.

8.  When Customs officers removed the blanket that was covering the defendant in order to handcuff her, they saw her holding a big pellet full of liquid, which the officers suspected was dangerous drug.  The defendant was cautioned again.  She exercised her right to silence.  

9.  In the subsequent cautioned interview, the defendant denied knowledge of what was inside the pellets, although she thought it was something illegal.  She claimed it was “Henry” who brought the pellets and told her to swallow them and then go to Hong Kong.  Since she was not able to swallow all the pellets, “Henry” told her to put the aforementioned big pellet of liquid into her vagina.  

10.  The defendant was told she would be paid US$2,800 for doing this.  She planned to use the money to pay her kids’ school fees.  She was supposed to stay here for 7 days, during which time she will meet up with a Nigerian man who would know where she was staying.  

11.  The defendant discharged a total of 75 pellets, which, together with the pellet that the defendant had taken out from her vagina, contained the 1,090g of solid as particularized.  

12.  Further investigation revealed that the defendant had communicated via WhatsApp on her mobile phone with a “Elijah Mashonganyika”, saying that she would go to China for “drug dealing”, that it was a “chain business”, and that she had been dealing with “Nigerians South Africans” for years.  

13.  The defendant also maintained communication with a “Tanya” while on her way to Hong Kong, keeping her informed about her progress.  It was this “Tanya” who would be arranging for the defendant’s accommodation here.  

14.  By her admission to the Summary of Facts, the defendant had accepted that she had unlawfully trafficked in all the dangerous drugs that she was in possession of.  

PREVIOUS CONVICTION

15.  The defendant is of previously clear record in Hong Kong.  

BACKGROUND AND MITIGATION

16.  The defendant was born in Zimbabwe in March 1990 and is 35.  She is married with 2 sons and a daughter.  The four of them lived together in Zimbabwe.  The father, who is not married to the defendant, lives apart after separating with the defendant in 2020, providing some financial support for the children every six months or so.  

17.  The defendant qualified as a nursing assistant in 2022 and had been working part-time prior to travelling to Hong Kong.  

18.  Mr. Trevor Beel, Counsel for the defendant, fairly accepted that there is an international element involved in the commission of the offence, and that an enhancement will be inevitable.

SENTENCING

19.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine.

20.  The sentencing approach laid down in Herry Jane Yusuph[2], together with the updated sentencing guidelines in Huang Ruifang[3] are applied as follows.

Step 1: The applicable guideline tariff bands

21.  For 924 grammes of cocaine, the applicable guideline tariff band is “16 to 20 years’ imprisonment”.

Step 2: The defendant’s role and culpability

22.  The defendant had started her journey in South Africa, flew to a different country to pick up the drugs, and then hid them inside her body in order to bring them into Hong Kong. She was playing the role of an international courier of dangerous drugs.

23.  According to the case of Lee Ming Ho[4], the presence of an international element in the trafficking is a matter that goes to the role and culpability of the offender when identifying the starting point rather than as a separate and additional aggravating feature, save in appropriate cases where the court can still exercise its discretion and deal with it as a specific aggravating feature.

24.  In the present case, I find that the international element can be considered as part of her role and culpability and a notional starting point higher than the arithmetical application of the tariffs should be adopted.

Step 3: The relevant band within the guidelines

25.  Given the substantial quantity of dangerous drugs being trafficked internationally, I find that a proper starting point is that of 19 years, which is 16 months higher (approximately 7.5%) than the notional starting point for a simple local courier (being 17 years 8 months).

Step 4: Aggravating factors

26.  Save for the international element which has already been considered, there are no other aggravating factors that would require a further enhancement in sentence.

Step 5: Mitigating factors

27.  There are no mitigating factors apart from the defendant’s timely plea of guilty, for which she is granted a one-third discount, resulting in a sentence of 12 years 8 months.

Step 6: Totality

28.  Taking a step back, I find this sentence fair, just and balanced in the circumstances.

FINAL SENTENCE

29.  The defendant is sentenced to 12 years 8 months’ imprisonment after plea.