COURT: I don’t propose to keep you in suspense. You are going to prison for 11 years and 6 months. In the light of our rules about remission of sentence and the time you have been in custody up to now, it is likely that you will have to remain in prison for about 5 and a half more years before you can be released. You may sit down while I explain my reasons.
You were caught at Hong Kong International Airport having consumed 92 pellets of cocaine which were expelled over the next few days. You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs.
The guidelines are based on the amount of drugs involved, although the court does not look at their weight as a whole. It focuses on the narcotic content of the drugs. The weight of the narcotic content of the cocaine which you were smuggling into Hong Kong was 976 grammes, which is close to 1 kilo.
The guidelines have been reduced since you were arrested, and they now say that the appropriate range for someone who
is convicted of trafficking in between 500 and 1,500 grammes of cocaine is 16 to 20 years’ imprisonment. That is the appropriate range for someone whose role was at the lowest level of culpability. It is also the appropriate range for someone who has been convicted after pleading not guilty.
So in view of the weight of the narcotic content of the cocaine which you were bringing into Hong Kong, you would be looking at a notional starting point for sentence of about 17 years’ and 9 months’ imprisonment.
I haven’t been told of any evidence which shows where you were in the distribution chain, but there is absolutely nothing to suggest that you weren’t just a low-level courier paid to bring this cocaine into Hong Kong from Addis Ababa. Nor is there anything to suggest that you’d done this before, and therefore there is no basis for saying that you were, for example, a well-established and seasoned courier.
There are therefore no grounds for treating you otherwise than in accordance with what you assert, namely, that you are a low-level drug mule who happened to be caught the only time you were persuaded to do something like this. You say that you didn’t know that the drug you were smuggling into Hong Kong was cocaine. I have no reason to doubt that, but the courts have said that that is the risk that couriers such as yourself take.
Having said that, in the hierarchy of roles of those who traffic in dangerous drugs, you are, as a courier, to be placed in the category of offenders of the least culpability. Indeed, you are very likely to have been persuaded by those further up the distribution chain to become a courier because being in debt you were seen as vulnerable and easily influenced, and the experience of the courts is that you may well have been told that the chances of being caught were negligible, and that even if you were caught the sentence would be modest and your family would be looked after. Indeed, you say that that is precisely what you were told.
On the other hand, what you did involved bringing this cocaine into Hong Kong across international borders (what is sometimes called “the international element”). I do not enhance the notional starting point for sentence specifically to reflect that in the light of a decision of the Court of Appeal a few years ago.
The Court of Appeal said in effect that the aggravating feature of bringing drugs into Hong Kong across international borders should be regarded as relevant to an offender’s role and culpability when identifying the appropriate starting point, rather than as a free-standing
aggravating factor calling for a separate enhancement of the
starting point. To do otherwise could result in double counting, by which I mean sentencing someone twice over for the same thing.
Bearing in mind, then, the weight of the narcotic content of the cocaine you were smuggling into Hong Kong and the level of your culpability, albeit factoring into that the international element, I propose to take 18 years’ imprisonment as the actual starting point for the sentence in your case.
I turn to the mitigating factors. First and foremost, there is your plea of guilty, which was intimated to the Magistracy well before the date on which you actually pleaded guilty and were committed to the Court of First Instance for sentence. That entitles you to have your sentence discounted by at least one-third.
But secondly, it is impossible not to acknowledge that all this has been a personal tragedy for you. We all occasionally make bad decisions in our lives, but rarely do they have such appalling consequences as these. Your decision to make this run may have seemed at the time a good if risky way of getting out of debt, but I don’t suppose a day passes without you regretting what you did.
Some people say that our sentencing regime should distinguish far more than it does between couriers like yourself and those further up the distribution chain, those perhaps much closer to the people who actually run this trade and are far more heavily implicated in it than you. It is not without significance that relatively humble people like you who are persuaded to run the risk of carrying drugs across international borders are called “mules”, that being a metaphor for someone who is being used and manipulated.
Other people may think that the focus which our sentencing regime places on the weight of the drugs is too blunt an instrument when couriers like you may well not know the amount of the drugs they are smuggling into Hong Kong or what kind of drugs they are. And in such a case, a standardised sentence may well not reflect the offender’s true culpability. But these are matters which have been addressed by our Court of Appeal, and I must loyally follow the guidelines which the Court of Appeal has said should apply to cases such as yours.
Having said that, I can take into account - at least to a limited extent - your personal circumstances, though again the Court of Appeal has said that they carry little weight in cases such as these.
Those circumstances include the fact that you are HIV positive, that you have problems with your eyesight and that you have four children with whom by the time of your release you will have had no real contact for many years. I also appreciate that you will be serving your sentence in Hong Kong, very far from your home in Zimbabwe. I know that the Court of Appeal has said that:
“[d]rug traffickers from abroad, importing drugs into Hong Kong, ...will receive no sympathetic consideration whatsoever on account of ...their incarceration some distance from home”.
I am obliged to follow that loyally, but the fact remains that unlike other prisoners you may not have many fellow prisoners who speak your mother tongue, and you will not have the opportunity of regular visits from members of your family.
Finally, I have received a letter from Father John Wotherspoon. The importance of Father John’s well-known campaign is that it brings about a greater awareness of the punishment which those who bring drugs into Hong Kong can expect.
As a foreigner, the impact of your detention on would-be couriers is likely to be greater than that of locals, as you can paint a more vivid picture for those back home of the consequences of being caught at Hong Kong’s borders with hard drugs. Father John has put your story on YouTube in the hope that it will deter others from making the disastrous mistake that you did. Moreover, you have provided him with information about who recruited you in Zimbabwe and South Africa, and Father John has shared that information with the authorities in Africa.
The Court of Appeal has recently questioned the appropriateness of Father John sharing intelligence in an informal way like that, but that did not affect the usefulness of the information you provided. That is also something to be encouraged, and I have reduced your sentence by a modest and proportionate degree to reflect both those factors.
Would you stand up, please. For all these reasons, the notional starting point in your case should be reduced to an actual sentence of 11 years’ and 6 months’ imprisonment.
Standing back and looking at that sentence as a whole in the light of the guidelines which I must of course respect, it is, I think, a fair, just and balanced sentence in both the circumstances of the case and your own personal circumstances.