HKSAR v. ONEAL TIMOTHY JR.

HCCC 13/2025

[2025] HKCFI 1677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug before Magistrate Ms. WAT Lai-man Minnie and was committed, on 9^th January 2025, to the Court of First Instance for sentence. He confirmed his guilty plea and admission to the summary of facts before me and his conviction was duly recorded.

2.  Particulars of the charge are that the defendant, on 9^th of September, 2023, at Customs Arrival Hall B, Passenger Terminal 1, Hong Kong International Airport, Chek Lap Kok, unlawfully trafficked in a dangerous drug, namely 1,473.9 grammes of a solid containing 1,074.7 grammes of cocaine.

FACTS

3.  The defendant arrived at Hong Kong International Airport from Istanbul, Turkey on the charge date and was intercepted when he attempted to use the Green Lane through Customs.  The suitcase and backpack that he was carrying were searched.

4.  Upon cutting open the inner linings of an apparently empty handbag, an empty laptop bag, and 5 plastic bags with clothes inside, wrapping materials containing white powder were found.  Rapid tests yield positive result for cocaine.  

5.  The defendant was arrested and cautioned at around 6:30pm.  Under caution, and upon later inquiries, the defendant claimed that he received the said 3 bags from an African man known to him as ‘Martin’ when they were in Freetown, Sierra Leone.  ‘Martin’ told him to bring the things to Hong Kong and to wait for him to call.  He was to stay at the Grand Hyatt hotel.  The defendant claimed he was not promised a reward for bringing the bags, and he did not know there was dangerous drug inside.

6.  Government chemist would eventually confirm the powder found from the bags inside the suitcase are the cocaine as particularized.  The estimated street value of the drugs seized was around HK$1,622,763.90.

7.  With the defendant’s consent to take part, a controlled delivery was conducted.  The defendant was taken to the South Pacific Hotel where 4 WhatsApp video calls were made with a person identified as ‘Martin Usa’ at around 00:17am on 10^th September 2023.  There were also multiple WhatsApp messages exchanged between them.

8.  ‘Martin’ requested the defendant to show the surroundings of the hotel room during one of the video calls, which the defendant did.  ‘Martin’ then asked to see the items in the suitcase.  At this point the defendant said that the network was poor and ended the video call.  I was told by the prosecution that this was done as instructed by the Customs officers.

9.  The defendant did call ‘Martin’ back and showed the items in the suitcase.  ‘Martin’ said that someone will come to pick up the items and told the defendant to wait for further instructions.  The defendant asked when that person would come and ‘Martin’ just said that someone will come without giving a specific time.  The defendant then told ‘Martin’ that he was staying at the South Pacific Hotel.  The defendant later on sent a message requesting ‘Martin’ to let him know before 3am when that person will arrive.  ‘Martin’ did not reply to that message.

10.  In the end, no one showed up and the defendant received no further messages from ‘Martin’ or anyone regarding the collection of the suitcase and its contents.  The controlled delivery was called off at 3am.  

11.  In the subsequent video recorded interview, the defendant claimed, inter alia, that he was in Freetown for his car business, arriving on 27^th August 2023. He stayed there for 7 days, in a house rented by a supposed customer ‘Jamaica’, who also paid for his food and air-tickets.  While there, ‘Martin’ visited him at the house.  The defendant stayed in Freetown for a total of two weeks.  ‘Martin’ asked him to drop something off to someone in Hong Kong as a favour.  He was not promised a reward, but ‘Martin’ did send him a new set of air-tickets, which costs about USD$4,000 to 5,000.  

12.  The defendant moved to a hotel the day before he flew out of Freetown.  ‘Martin’ brought the handbag, laptop bag and helped the defendant pack.  The defendant claimed he only helped ‘Martin’ put the things into his suitcase, he did not check the items, and did not know that there were drugs concealed inside.  The laptop computer was handed to him by ‘Martin’ together with the laptop bag.  The defendant had taken out the laptop computer and put it in his own extra bag.

13.  The defendant claimed he planned to come to Hong Kong to check out some electronic bikes for the said customer ‘Jamaica’.  He was supposed to stay in Hong Kong for a week but the trip was shortened to 3 days.  He planned to return to the USA afterwards.  

14.  ‘Martin’ at first booked him into the Cosmo Hotel for 7 days, but later changed to the Grand Hyatt for 3 days.  The defendant admitted that he did not know any places for bikes in Hong Kong and did not have any plan regarding where to go while here.  

15.  Further investigations revealed that the defendant was in possession of a return ticket for a flight from Hong Kong to Istanbul, leaving on 11^th September 2023, and a ticket for a flight from Istanbul to New York, leaving on 12^th September 2023.  

16.  By the defendant’s plea of guilty and his admission to the Summary of Facts, he had admitted and accepted that he was knowingly in possession of all the seized dangerous drugs for the purpose of unlawful trafficking.

PREVIOUS CONVICTION

The defendant has no previous conviction record in Hong Kong.

BACKGROUND AND MITIGATION

17.  The defendant was born in the United States of America in November 1969 and is 55.  Ms. Fanny Wong, counsel for the defendant, told the court that the defendant is married with 8 children and 9 grandchildren.  He was living with his youngest son who is 14 years old, and is responsible for his living expenses at around USD$200 per month.  The defendant was educated up to high school level and is a licensed mechanic and a salesman, with a monthly income of USD$3,000.

18.  It is Ms. Wong’s submission that the defendant was an international courier at the lowest rank of the trafficking hierarchy, bringing the drugs into Hong Kong on the instructions of others.  He was not the mastermind, organiser or financier.

SENTENCING

19.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine.  

20.  The sentencing approach laid down in Herry Jane Yusuph[1], together with the updated sentencing guidelines in Huang Ruifang[2] are applied as follows.

Step 1: The applicable guideline tariff bands

21.  For 1,074.7 grammes of cocaine, the applicable guideline tariff band is “16 to 20 years’ imprisonment”.

Step 2: The defendant’s role and culpability

22.  The defendant had gone to Sierra Leone and stayed there for about two weeks before picking up the dangerous drugs and commenced his journey to Hong Kong via Turkey.  He was supposed to wait in a hotel in Hong Kong for someone to come pick up the drugs. He was playing the role of an international courier of dangerous drugs.

23.  According to the case of Lee Ming Ho[3], the presence of an international element in the trafficking is a matter that goes to the role and culpability of the offender when identifying the starting point, as such, a notional starting point higher than the arithmetical application of the tariffs will be adopted.

Step 3: The relevant band within the guidelines

24.  Given the substantial quantity of dangerous drugs being trafficked internationally, I find that a proper starting point is that of 20 years, which is 21 months higher (approximately 9.6%)  than the notional starting point for a simple local courier (being 18 years 3 months).

Step 4: Aggravating factors

25.  Save for the international element which has already been considered, there are no other aggravating factors that would require a further enhancement in sentence.

Step 5: Mitigating factors

26.  Ms. Wong says that the defendant’s agreement to take part in the controlled delivery should be recognized and a reduction in sentence given.

27.  On the basis that the defendant knew he was bringing drugs into Hong Kong, which he had admitted to upon pleading guilty, it would be almost unfathomable that ‘Martin’ and the defendant had not prepared for the scenario where the defendant had been caught and compromised, perhaps by way of a code in their communication.

28.  It is not for this court to surmise what the code might be, but the fact that ‘Martin’ stopped responding to the defendant in WhatsApp right after the initial communication had ended would allow me to draw the only reasonable inference that ‘Martin’ had somehow found out that the defendant and the drugs had been intercepted, and that the finding out took place during the WhatsApp communications.

29.  However, that is not the only reasonable inference that can be drawn based on those same set of facts.  The facts state that ‘Martin’ had requested to look around the room, as well as the items in the suitcase in the video call.  The defendant had cut off the call before re-connecting to show the items as instructed.  It is a reasonable inference that ‘Martin’, being an international drug trafficker, was very astute and was able to sense or see or notice that something had happened and, without any signal from the defendant, deduced that the call was being monitored and ended the communication and the operation.  

30.  Given that there can be two reasonable inferences, the defendant must be sentenced on the factual basis that is most advantageous to him, which is that he did not signal ‘Martin’ about his being apprehended, and that he did try to assist in the apprehension of anyone who might show up to collect the drugs.

31.  Therefore, for the defendant’s assistance given to the Customs Officers by taking part in the controlled delivery, a 40% discount (inclusive of the one-third discount for his guilty plea)  is granted, taking the sentence down to 12 years.

32.  I will grant the defendant a further 3 month reduction in sentence for his active participation in Father John Wotherspoon’s Voice for Prisoners operation by offering to communicate with others so that they would be in a better position to avoid being sucked into the world of drug trafficking.  

33.  As for the personal circumstances of the defendant, it is trite law that in offences as serious as the present one, they will be given no special consideration in mitigation[4].

Step 6: Totality

34.  Taking a step back, I find this sentence fair, just and balanced in the circumstances.  

FINAL SENTENCE

35.  The defendant is sentenced to 11 years 9 months’ imprisonment after plea.