COURT: I don’t propose to keep you in suspense. You are going to prison for 10 years and 6 months. When I’ve left court, your lawyers will explain to you when you are likely to be released, bearing in mind the rules we have about remission of sentence, and how long you have been in custody awaiting trial and sentence.
You were caught at Hong Kong International Airport bringing into Hong Kong a not inconsiderable quantity of cocaine. It was packaged in such a way as to make its presence in your rucksack as inconspicuous as possible.
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 doesn’t 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 935.5 grammes, which is close to 1 kilo.
The guidelines have been reduced since you were arrested. 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 who is convicted after pleading not guilty. So if the approach was a purely mathematical and mechanical one, you would be looking at a notional starting point of about 17 years and 8 months’ imprisonment.
For a man who retired in 2016 with a modest pension and limited savings, you travel a great deal. Your children live in Japan and New Zealand, and until his death last July your brother lived in Israel. Yet your recent travel before your arrest was not insignificant. You were in Hong Kong four months before your arrest. When you arrived in Hong Kong and were arrested, you’d come from Addis Ababa. And after your proposed stay in Hong Kong, you had a flight booked to Johannesburg, even though you were living in Cambodia.
It makes one suspicious whether you were what you say you were, namely a one-off courier of drugs for a South African friend of yours. But mere suspicion is not a proper basis 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. Despite some misgivings, that is the factual basis on which I shall sentence you.
You may not have known that the drug you were smuggling into Hong Kong was cocaine, and you may not have known that the narcotic content of the cocaine amounted to almost one kilo. But the courts have said that that is the risk which 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 lowest category, by which I mean the category of least culpability. That needs to be reflected in the notional starting point for sentence.
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 freestanding 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, the level of your culpability, albeit factoring into it the international element, and the particular circumstances of the case, I propose to take 16 years and 9 months’ imprisonment as the actual starting point for your sentence.
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.
Secondly, there is your participation in what was hoped to be a controlled delivery of the cocaine to whoever you were to pass it on to in Hong Kong. The fact that that controlled delivery did not take place was not your fault. You had done what you could to ensure its success. The only reason why it did not succeed was because the customs officer who was in charge of it took the view that the demands of the person you were in touch with rendered the continuation of the controlled delivery too dangerous.
For obvious reasons, it is inappropriate for me to dwell on the risks to your personal safety which your cooperation with customs officers might have attracted. But people who are caught in circumstances similar to yours should be encouraged to engage in controlled deliveries, and the best way to do that is for the sentence of offenders such as yourself to be further discounted in a meaningful but nevertheless proportionate way.
I have not ignored Mr Marray’s reference to the fact that you are a committed Christian, and have been involved in church activities during your period in custody with Father John Wotherspoon and the Hong Kong Christian Kun Sun Association. That of itself would not justify a further discount in your sentence.
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 could paint a more vivid picture for those back home of the consequences of being caught at Hong Kong’s borders with hard drugs. But that is not what you have done. Your mere involvement in church activities does not reduce the chances of drugs coming into Hong Kong.
Finally, I have, of course, taken account of your age, the hardship of serving a prison sentence in what is for you a foreign country, the absence of any previous convictions in Hong Kong, your lack of mobility because of a problem with your knee, the pain it gives you, and your other health problems.
I have read the letter you have written to me in which you express deep regret for what you have done. I also acknowledge that this is a spectacular fall from grace for a man who once was a mechanical engineer. And it is for you at your age a crushing sentence. But these factors are of little weight in cases of this kind.
In my view, but overwhelmingly because of your plea of guilty and your participation in what was hoped to result in a controlled delivery, the notional starting point in your case should be reduced to an actual sentence of 10 years’ and 6 months’ imprisonment, which represents a total discount in the region of 37.5 per cent.
Standing back and looking at that sentence as a whole in the light of the guidelines which I must of course respect, I think that that is a fair, just, and balanced sentence in both circumstances of the case and your personal circumstances.