HKSAR v. GGOLOLA EDWARD

HCCC 42/2025

[2025] HKCFI 5152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 42 OF 2025

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant faces one count of “Trafficking in a dangerous drug”, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  He pleaded guilty and admitted the summary of facts at the committal proceedings on 6 February 2025.

2.  This morning, he appeared before me for mitigation and sentence, having confirmed his plea and the admission of the summary of facts.  

FACTS

3.  Defendant, a Ugandan national, arrived in Hong Kong on 3 November 2023.  After being refused permission to land by immigration, he was referred to customs for customs clearance.  A search of his person and belongings revealed no contraband initially, but an x-ray at the hospital subsequently confirmed he had concealed objects inside his body.

4.  He was arrested, and over the following days at Queen Elizabeth Hospital, he excreted 77 packets containing 978 grammes of a solid, which included 798 grammes of cocaine.  The estimated street value of the drugs was HK$979,956.

5.  Defendant now admits and accepts that at all material times, he knowingly possessed the seized cocaine (i.e. 978 grammes of a solid containing 798 grammes of cocaine) for the purpose of unlawful trafficking.

BACKGROUND AND MITIGATION

6.  Defendant was born on 4 December 1974 in Uganda and is now 50 years of age.  He attained primary education and mainly worked as a farmer, growing maize.  Due to the price fluctuations of maize, his earnings from the harvests decreased and he was unable to cover all his expenses including his children’s school fees.

7.  In mitigation, Ms. Patricia Alva, counsel for the Defendant, informs me that the Defendant has three children with his current wife but he has six other children outside the marriage.  The eldest child is 16 years old while the youngest is seven years old.

8.  Ms. Alva said the Defendant understands that financial hardship is not an excuse for committing a crime.  He very much regrets such a stupid decision which had tarnished his good character. Ms. Ava stressed that he knew nothing about the system in Hong Kong, least the tough sentence that awaits him.  The Defendant has written a mitigation letter in which he asks for forgiveness and apologizes to the Hong Kong people and the authorities.  He has indicated that he committed the offence due to financial pressure, as he could not pay the full amount of school fees for his children.  He asks for mercy and undertakes not to repeat the offence in future.

SENTENCING CONSIDERATIONS

9.  It is well established that trafficking in a dangerous drug is a very serious offence.  I have considered the approach to sentencing those who traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  That was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.

10.  In sentencing, six steps have been identified by the Court of Appeal, namely, assessing the gravity of the offence and applicable guideline, identifying the defendant’s role and culpability, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just and balanced in all the circumstances of both the offence and the defendant.

11.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized.  The sentencing guideline for cocaine is recently revised in the authority of HKSAR vHuang Ruifang [2025] HKCA 234.  In that case, it was held that the sentence for trafficking in cocaine between 500 and 1,500 grammes is 16 to 20 years’ imprisonment after trial.  The present case involves 798 grammes of cocaine.  Mathematically speaking, that amount of cocaine attracts a starting point of 17.19 years or 17 years 2.3 months of imprisonment.

12.  The second step is to assess the defendant’s role and culpability based on the evidence.  In this case, he swallowed the drugs and the drugs were concealed inside his body when he tried to enter into the territory after landing in the Hong Kong International Airport. In mitigation, the Defendant confirms that he was delivering the whole quantity of cocaine to a place according to the instruction of a friend in return for a reward.  

13.  In HKSAR v Lee Ming Ho (supra.), the Court of Appeal held that the international element, which used to be regarded as an aggravating factor in sentencing, should now to be regarded as a matter going to the role and culpability of the offender, and not as a separate and additional aggravating feature.  

14.  Ms. Alva relies on HKSAR vRaman Kapusamy[2024] 2 HKLRD 955 where the Court of Appeal held that :

“60. ...the international element is itself capable of taking a number of different forms and may not, therefore, lend itself to a standard or uniform enhancement. The most common example to come before the courts is the courier who, for a fee or reward, crosses the border with dangerous drugs secreted in or on their person or in their luggage.”

15.  Ms. Alva reiterates that the Court of Appeal had repeated its remarks in Lee Ming Ho(supra.), that:

“65. ... there may be a distinction between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of dangerous drugs, who may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of the punishment that will be meted out when he is caught; and the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns.”

16.  Ms. Alva urges the court to consider the Defendant’s background, including that this was his first time coming to Hong Kong, and his coming from a small village in Africa with only little education.  She also submits that the Defendant could not have imagined the punishment was going to be so harsh and he has truly reflected on his wrongdoings as expressed in his letter. She asks the court to impose an increase of no more than 7 months.

17.  In considering the proper level of enhancement on account of the international element, I bear in mind that while quantity is still a factor to consider in the adjustment, the approach is now flexible rather than prescriptive.  This defendant no doubt came from an impoverished village in Africa and a low-income agricultural family and this may well be his first time he travelled aboard but while I accept that he is of little education but I do not think that he was not aware of the consequences if he was caught.  Throughout the investigation, the Defendant exercised his right of silence and mentioned nothing that he was lured by the syndicate into trafficking cocaine and swallowed the dangerous drugs into his body and flew half of the world to Hong Kong.

18.  As Marcae VP also observed in Kilima Abubakar Abbas[2018] HKCA 602:

“87. ...However, I do not accept that such couriers do not know fully what they are doing when they ingest a large and potentially fatal consignment of dangerous drugs and/or carry it half way across the world to Hong Kong, or that they are not aware of the severity of the consequences if they are caught. As I have said, many countries in this region employ the death penalty for drug trafficking and I am not at all persuaded that traffickers are unaware of that ultimate punishment in some of the countries through which they pass, or that the offence of drug trafficking carries very severe sentences of imprisonment in Hong Kong.”

19.  For a quantity as high as 1 kilogramme, it is not uncommon for the court to enhance the sentence by 2 years.  In this case, while I accept that the syndicate behind had, to some extent, exploited the Defendant’s poverty and stupidity and lured him into cross-border drugs-trafficking, he was not that naive of the consequences of his misdeeds including swallowing a total of 77 wrappings of cocaine into his body and travelled all the way from Addis Ababa, Ethiopia to Hong Kong.  I would therefore still increase the starting point by about 13 months from 17.19 years to 18 years and 3 months of imprisonment to properly reflect his role and culpability in this case.

20.  The fourth and fifth steps require me to consider whether there are any further aggravating factors or any exceptional mitigating factors.  I find neither any aggravating or any mitigating factors apply or exist in this case other than the Defendant’s timely plea at the earliest opportunity.  The Court of Appeal held that family circumstances plays no part in the mitigation in serious offences such as drug-trafficking.

21.  The Defendant will be entitled to a discount of one-third from the starting point of 18 years and 3 months’ imprisonment.  Once that discount is applied, the sentence is reduced to 12 years and 2 months of imprisonment.

22.  The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced in all the circumstances, not only the offence but also the defendant.

23.  In this case, the final sentence is of course harsh to the Defendant especially when he is a foreigner but at the same time, the offence he had committed is so serious and he should already consider himself lucky as unlike some of our neighbouring countries, we do not impose death penalty for drug trafficking.  In the end, it is a matter of choice and consequence and there is no reason to assume that the Defendant was unaware of the severe punishment he would receive once he is caught and convicted by the court in Hong Kong.  He took the chance and he was caught red-handed.  Now he must pay the price and he has only himself to blame.  I have every sympathy especially for the Defendant’s very young children who will be brought up with no father around but the Court of Appeal had already held that family circumstances virtually play no part in the mitigation especially in serious cases such as drug-trafficking offence.  The final sentence I impose is only fair, just and balanced in all the circumstances.

ORDER

24.  Accordingly, the Defendant is sentenced to 12 years and 2 months of imprisonment.