COURT: The defendant pleaded guilty in the Eastern Magistrates’ Court on 25 March 2024 to a single charge of trafficking in dangerous drug, and she was committed for sentence to the Court of First Instance.
The particulars of the charge avers that on 9 April 2023, at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, the defendant unlawfully trafficked in 880 grammes of a solid containing 744 grammes of cocaine. The defendant comes before me today for sentence, having confirmed her plea and her admission of the Summary of Facts.
The Facts
The Summary of Facts reveals that on 9 April 2023, the defendant arrived at Hong Kong International Airport on a commercial flight departed from Ethiopia. She was first refused entry by the Immigration Department and was then taken to the customs for clearance.
Suspecting that the defendant to have concealed the dangerous drugs within her body, Customs and Excise officers took her to the North Lantau Hospital for medical examination.
The defendant later discharged from her body 21 pellets. Under caution, she revealed that she had swallowed the pellets in Ethiopia and that she did not know how many pellets she had swallowed. At that time, she claimed that she did not receive any reward and did not have any contact in Hong Kong.
The defendant was later transferred to Queen Elizabeth Hospital where she subsequently discharged from her body a further of 47 pellets. In total, there were altogether 68 pellets (P1 to P7), which were plastic wrappings containing a total of 880 grammes solid containing 744 grammes of cocaine.
The estimated street value of the drug was HK$960,960.
C&E officers further seized from the defendant two mobile phones, boarding passes, a printed flight itinerary, a bogus Hong Kong hotel reservation confirmation, miscellaneous documents, and some cash in US, Kenyan, and Ethiopian currency.
At all material times, the defendant knew that all the pellets (P1 to P7), contained dangerous drug and she possessed all the drug for the purpose of unlawfully trafficking in Hong Kong.
Defendant’s Background and Mitigation
The defendant is a Kenyan national. She is now 37 years old and with a clear record in Hong Kong. She was a single mother and lived with her 10-year-old son. She had one brother and one sister. She worked in a company and she received education up to the university level.
According to her counsel, Mr Newman Wong, she was born in a small town in Kenya to a very poor family. Her father passed away when she was still in her tender years. She was brought up by her mother singlehandedly, who had to take up all sorts of odd jobs to support the family. Her mother, unfortunately, passed away in 2015.
She later met the father of her son in around 2013 and gave birth to the son in 2014. But the man was abusive and violent, and the relationship turned out to be a disaster. Finally, their relationship ended in around 2017 to 2018 with her keeping the custody and the responsibility of bringing up the son.
The defendant had worked her way up and managed to set up a sewage business back in Kenya. In mitigation, Mr Wong told the court that the defendant committed the present offence because of the financial difficulties. At the material times due to the pandemic, her company business was badly affected. Financial pressure was mounting and gradually increased for the defendant and her family. She also had received numerous physical threats by the creditors. Without due consideration to the possible serious consequences and under the influence and the persuasion of a dubious character called Virginia, the defendant committed the present offence in order to earn quick money.
Apart from the present offence, defendant has never been in trouble with the law before both here and back in Kenya. She has been a good mother and generally a good person.
After her incarceration for the present offence, Mr Wong told the court that the defendant began to develop Adjustment Disorder and Recurrent Depressive Disorder, and has been receiving counselling in the prison. She also further participated in Father John Wotherspoon’s programme and provided information to the Kenyan police about her accomplice in Kenya. She had also enrolled with the distance learning course by the Metropolitan University for courses in business and related subjects.
Mr Wong submitted that the defendant is now extremely remorseful for her wrongdoings and is willing to face her consequences. She therefore decided to plead guilty and to bear the responsibility.
The defence also submitted a number of mitigation letters written by the defendant herself, her son, her uncle, her brother, and her close friend, and of course, Father John respectively for consideration. I am here not going to refer to the content of the individual letters, suffice it to say that they all said the defendant is generally a good person and they all beg for a lenient sentence and stress that the defendant is now truly remorseful and have their full support.
The defendant in particular, expressed deep remorse in her letter and asked for leniency. She therefore has provided information to Father Wotherspoon in order to help combating drug trafficking activities in Kenya. In addition, she feels sorry for what she had done and she undertakes that she would not reoffend in the future.
Consideration of Sentence
In sentencing, I shall follow the six-step approach as mentioned in the case of Herry Jane Yusuph [2021] 1 HKLRD 290.
The first step is to assess the gravity of the offence. The subject matter of the dangerous drug in this case is of course cocaine. Cocaine and heroin are equated for the sentencing purposes and the tariff as fixed for heroin in R v Lau Tak Ming and Others [1990] 2 HKLR 370, as later modified by the case HKSAR v Abdallah [2009] 2 HKLRD 437, would apply to cocaine equally.
According to Abdallah, the starting point for trafficking between 600 grammes and 1,200 grammes is 20 to 23 years’ imprisonment. The quantity of cocaine involved in the present charge is 744 grammes, and of course is substantial. Applying the sentencing guideline laid down in Abdallah, I consider a starting point of 20 years and 9 months’ imprisonment is appropriate.
The second step is to assess the defendant’s role and culpability based upon the evidence.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. As was held by the Court of Appeal in Herry Jane Yusuph (at paragraph 59):
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of the drug traffickers, namely, the courier or storekeeper.
The facts of this case reveals that the defendant’s role in this case is merely a courier and there is nothing in the prosecution case that I can see to challenge this submission.
Secondly, the present case also involved cross-border trafficking. According to the recent decision by the Court of Appeal in HKSAR v Lee Ming Ho, CACC 130/2019, [2024] HKCA 150, the Court of Appeal had decided that the international element which formerly was treated as a separate and individual aggravating factor should now be generally considered as a factor when assessing the role and culpability of the offender in order to identify the appropriate starting point for the sentence.
The fact that the defendant trafficked the cocaine across the international borders and imported into Hong Kong, with such a large quantity of cocaine indicates that her role is more serious and calls for a higher sentence from the basic starting point of 20 years and 9 months to 22 years’ imprisonment which is an enhancement of 15 months.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. Now the defendant has no previous similar record and indeed no criminal record in Hong Kong. And the aggravating feature in the trafficking charge as I have indicated, has already been reflected in the assessment of the role played by her. So I decided not to further enhance the sentence under this step in order to avoid double counting.
The fifth step is to consider all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are very exceptional. Now apart from the defendant’s timely and early plea of guilty at the committal stage, Mr Wong further submitted that the defendant had participated in Father Wotherspoon’s anti-drug campaign and provided some information through him to the Kenyan authority.
The court can never accept economic reason for committing crimes, and in sentencing serious offence such as the present, the Court of Appeal have repeatedly said that family circumstances virtually play no part in mitigation.
As for her depressive symptom which the defence had emphasised, I am sure she will receive proper treatment in her prison authority. As for her cooperation and the provision of information to Father Wotherspoon in order to combat drug trafficking activities in Kenya, the Court of Appeal had said that in the case of HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, that the participation in Father Wotherspoon’s campaign is an act of reparation and should be treated as mitigating the defendant’s culpability.
However, Macrae VP had also said recently that in assessing the discount for this factor should normally be no more than 3 months in any event. After the usual one-third discount, the defendant’s sentence is reduced from 22 years to 176 months, which I will further reduce by 3 months to 173 months or 14 years and 5 months.
Now the sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence and offender. In my judgment, the overall sentence
of 14 years and 5 months’ imprisonment for the trafficking charge is of course harsh for the defendant, especially a person of her background and also the fact that she is a foreign national, having to serve sentence in a Hong Kong prison. But the offence she committed is so serious and she is a woman with a university education and was not lacking education. She should know better what is the appalling consequences of the punishment if she was caught by the police in Hong Kong. She should think twice before embarking on these criminal activities. She took the chance and was caught red-handed when she attempted to enter Hong Kong.
Of course, I feel sorry for her 10-year-old son, but overall the sentence is fair, just, and balanced in the circumstances.
Based on the above reasons, the sentence is therefore 14 years and 5 months’ imprisonment.