COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug and admitted the summary of facts in the committal proceedings at the Eastern Magistracy on 14 October 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his plea and his agreement to the summary of facts through counsel.
The particulars of the charge state that on the 7th day of September 2023, at Baggage Examination Counter S7, Customs Arrival Hall B, Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1,064 grammes of a solid containing 879 grammes of cocaine.
The summary of facts admitted by the defendant provides, inter alia, as follows. At about 4.12 pm on 7 September 2023, PW1, a staff of the ground handling agent of SATS HK Limited (“SHKL”) referred a delayed and unlocked checked-in travel bag (“the Bag”) to the Customs and Excise Department for clearance. PW4, a Customs officer, emptied the Bag, conducted X-ray examination and ion scan on the Bag. X-ray image showed something suspicious was concealed in the Bag and the ion scan result was positive towards cocaine. The Bag was then examined by PW4 in the absence of the owner of the Bag. Some white powder was found concealed in the Bag. Narcotic test of the white powder showed that it was positive to cocaine.
Subsequently, further white powder was found concealed in the Bag. Narcotic test of the white powder showed that it was also positive to cocaine.
At about 5.14 pm on 7 September 2023, the defendant, who had arrived in Hong Kong by flight on 5 September 2023 and was accompanied by PW5, a staff of SHKL, was referred to PW7 and PW8, Customs officers. The defendant was brought to Baggage Examination Counter S7 by PW7 and PW8. Having verbally confirmed that the defendant was the owner of the Bag, the defendant was arrested. The defendant stated under verbal caution that he got the Bag from his friend called Jack in Ethiopia. Jack gave the Bag for him to keep as a gift. However, he did not have the contact details of Jack and did not get any reward from Jack.
The defendant further stated under caution that the Bag belonged to him. He came to Hong Kong alone to buy things and sell them in his country. He would keep the Bag and take it with him when he returned to his country. He bought the flight tickets and booked a hotel himself. He stayed alone in the hotel in Hong Kong.
At 8.30 am on 9 September 2023, PW9, a Customs officer, in the presence of the defendant, cut open the two inner sides of the Bag and respectively retrieved Exhibit P1, cocaine, which was wrapped in a black non-woven fabric, and Exhibit P2, cocaine, which was wrapped in a black non-woven fabric, from the two inner sides of the Bag.
Upon search of the defendant, the following items were found: his passport, one key card for accessing a hotel, a piece of paper, cash (consisting of US$300 and HK$567.50), a mobile phone, Property Irregularity Report dated 5 September 2023 issued by the Ethiopian Airline, Immigration Departure Card. Further cash, being HK$270 and Namibian money $160, were found in the defendant’s hotel room. Nothing suspicious was found in the hotel room.
Government Chemist’s Certificate certified that Exhibit P1 was 529 grammes of a solid containing 439 grammes of cocaine and Exhibit P2 was 535 grammes of a solid containing 440 grammes of cocaine. A total of 1,064 grammes of a solid containing a total of 879 grammes of cocaine was found.
Movement record showed that the defendant entered into Hong Kong at about 3.38 pm on 5 September 2023. Flight booking record showed that a round-trip ticket was booked, that is, he booked a flight for travelling to Hong Kong from Addis Ababa, Ethiopia on 4 September 2023 and would return to Addis Ababa, Ethiopia from Hong Kong on 15 September 2023. Enquiry with the hotel showed that the defendant had stayed at the hotel from 5 September 2023 to 8 September 2023 and paid the hotel fees in cash on a daily basis.
The estimated prevailing street value of the cocaine seized was HK$1,171,464.
The defendant admits that he possessed the dangerous drug seized for the purpose of trafficking.
Regarding the personal background of the defendant, he is a 49-year-old Namibian. He worked for some years as a salesperson in a clothes shop and then in a shoe shop, and after losing that job became a market trader. Although he was not in debt, the defendant struggled to make a living and was partly relying on his family. I am told that the defendant has a clear record both in Hong Kong and in Namibia.
The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. The first step is to identify the relevant sentencing band or bracket applicable to the quantity of drug concerned. The second step is an assessment of the role and culpability of the defendant based on evidence before the court. The third step is to identify where in the relevant band of the guidelines the defendant comes. It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant. The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”. The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”.
Regarding the first step, for 879 grammes of cocaine, the applicable guideline tariff band is that of 16 to 20 years’ imprisonment: see HKSAR v Huang Ruifang [2025] HKCA 234 at paragraph 62.
Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier, in that he brought the drugs from Ethiopia to Hong Kong. However, this case clearly involves an international element. This is an important factor when assessing the role and culpability of the defendant in order to identify the appropriate starting point for sentence. I have to bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes great harm to the community: see HKSAR v Lee Ming Ho, ibid, at paragraph 74.
Third, for 879 grammes of cocaine, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 17 years and 6 months’ imprisonment. For the international element of this case as held above, I would increase the notional sentence after trial by 12 months, taking it to 18 years and 6 months’ imprisonment.
Fourth, I consider that there is no aggravating factors which would enhance the notional sentence after trial.
Fifth, as a matter of discretion, I would afford the defendant a discount of 2 months for his participation in Father Wotherspoon’s programme. This would take the notional sentence after trial down to 18 years and 4 months’ imprisonment.
I consider that the only other mitigating factor which may reduce the defendant’s sentence is his timely plea, for which I will give him a one-third discount.
Accordingly, the defendant’s sentence is reduced to 12 years and 2 months’ imprisonment.
Finally, I consider that a sentence of 12 years and 2 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and the circumstances of the defendant.
Defendant, you are accordingly sentenced to 12 years and 2 months’ imprisonment.