COURT: Defendant, you have pleaded guilty before a magistrate of one charge of trafficking in a dangerous drug. Today you confirmed your plea before me and are stood convicted of the charge.
In sentencing I have considered the whole circumstances of the case including its nature and facts, in particular the nature and quantity of the dangerous drug concerned, your background and mitigation put forward on your behalf.
The facts of the case may be summarised as follows.
On 3 May 2012 you arrived in Hong Kong by a flight from Brazil via Dubai. At the airport you were searched by a Customs officer. When a tissue paper was spotted near your vagina you were asked to remove it. You retrieved a packet consisting of a condom wrapping which contained cocaine from your vagina. You were then sent to hospital. Medical examination revealed that foreign objects existed in your rectum. Between 3rd and 5th May you discharged a total of 52 packets of plastic wrapping which later confirmed to be containing cocaine.
The packet you kept in your vagina contained 0.11 kilogram of a mixture containing 0.09 kilogram of cocaine. The 52 packets you later discharged contained a total of 0.47 kilogram of a mixture containing 0.39 kilogram of cocaine.
I was told that you are a citizen of Thailand, now 25 years of age. Your mother died when you were 8 years old. Five years later your father passed away as well. You were brought up by your grand aunt. You left school at the age of 16 and became a massage therapist. You had cohabited with a man and the two of you have a daughter, now 4 years old. The man had however left for another woman. He had given you little financial support. I was told that earnings from your massage service was not sufficient to make ends meet.
As regards the circumstances leading to your committing of the offence your counsel informed the court with a sad story. Since what your counsel told me raised a concern which I will address later I set the story out in some detail.
It started off with something the court quite frequently heard. You met a Nigerian man who treated you very well. An intimate relationship developed. He then asked you to offer him assistance in his business and promised you a handsome reward. Not knowing exactly what the business was about, out of love for the man and trust in him, you agreed. You believed you were to go to Brazil together with him to help him collect diamonds. Despite you knew nothing about Brazil, you agreed out of love and trust and with the hope that the reward would help you set up your own massage parlour. Before you left for Brazil you were told by the boyfriend that you were to go on your own first and he would join you later. You naively believed in him and did as told without knowing the illegal nature of this exercise.
In Brazil you waited for your boyfriend for a week but he did not come. Instead, three men approached you and told you that you were to swallow packets of dangerous drugs to take them to Hong Kong. You refused. When you telephoned your boyfriend in Thailand, he said you had to do so otherwise you will be deprived of a return air ticket. You still refused. There was further persuasion from your boyfriend and the three men in Brazil. You refused to eat. During your stay in Brazil the three men had raped and mistreated you. It was against this background you eventually agreed to commit the offence.
The prosecution took no issue in this aspect.
Having heard what your counsel said, as you are aware, I raised the concern as to whether the defence of duress is engaged and whether the plea is equivocal and therefore one I should not accept.
After taking further instruction from you, your counsel confirms that, having been advised about the situation and the court’s concern, and indeed there had been detailed informed discussion between your counsel and you before this hearing, that you maintain your guilty plea.
In the circumstances and bearing in mind the defence of duress concerns your state of mind at the time of the offence, and for this you are the one who knows best, I accept your guilty plea.
Your counsel also told me that you have provided assistance to the authorities by giving them information of the man involved including the name, photograph and telephone numbers.
The Customs and Excise Department had carried out their own investigation and forwarded the information to relevant authorities in Thailand and Brazil. Up to now the investigations bear no fruitful result.
Your counsel urged me to take into account that you have been naively exploited by a person whom you loved and trusted. She also urged me to take into account the circumstances in which you committed the offence. Despite it falls short of duress, in the circumstances leniency is justified.
She also produced to the court a letter written by you and another by your grandmother who turned up in court to show support to you.
The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs are very closely alike in their degree of harm.
In Lau Tak Ming, a sentence of 15 to 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is between 400 and 600 grammes.
I have to take into account the international element in the case. For this aggravating feature the starting point has to be enhanced. Bearing in mind the circumstances in which you came to commit the offence, I am of the view that the starting point should be enhanced by 6 months.
Having considered the whole circumstances, in my judgment an ultimate starting point of 17½ years is appropriate.
You are entitled to a one-third discount for your guilty plea, your previous clear record and the remorse you have expressed.
The circumstances in which you committed the offence falls short of duress. I accept that when you left Thailand for Brazil, despite the arrangement would reasonably have caused suspicion, you did not have the knowledge of the illegal plan. When you came to know the illegal nature of what you were to do you were in a country strange to you. You were subject to mistreatment.
Although, as your counsel has said, the aggregate effect of these do not amount to a defence, having considered what she had told me, I am prepared to give you some further discount.
In my judgment, an ultimate imprisonment term of 10½ years is appropriate.
I note that you are a foreigner. However, as Madam Chu J, as Chu JA then was, said in HKSAR v Lee Sin Seang, CACC 341/2010, in serious offences like trafficking in dangerous drugs the personal circumstances of an accused including the inconvenience of a foreigner serving sentence in the local prison will play little part in mitigation.
Yes, defendant, please stand up. By reasons of the matters aforesaid, you are sentenced to an imprisonment term of 10½ years.