COURT: The defendant pleaded guilty before a magistrate to one count of trafficking in a dangerous drug and was committed for sentence.
The total quantity of dangerous drugs involved in this case is 935.1 grammes of cocaine. The estimated market retail value of the cocaine amounts to around HK$1.2 million.
The defendant is a citizen of the Kingdom of Lesotho in Africa. On 27 February 2016, she was detained at the Hong Kong International Airport on her arrival on a flight from Johannesburg via Dubai. Upon search of the defendant’s travel bag, a Dubai duty-free plastic bag was found containing a candy box with 51 pellets of cocaine inside. On body search, two other pellets of cocaine were found inside the defendant’s vagina. The defendant was then taken to two different hospitals for examination and a total of 30 pellets were discharged by her at the hospitals.
Under caution, the defendant said a Nigerian male in Lesotho asked her to come to Hong Kong through Dubai. When she was in Dubai, the brother of the Nigerian male gave her some money, three packets of chocolate and 32 pellets of the drugs. He asked her to take them to Hong Kong to his brother who would wait for her at the Hong Kong Airport. She swallowed the pellets and also put some into her vagina. She did not know what was inside the chocolate boxes.
The defendant is a single woman with two children including a 3-year-old son and a 7-month-old daughter. They are now under the care of the defendant’s boyfriend. She has a previous conviction of trafficking in dangerous drugs in Hong Kong, for which she was sentenced to 3 years and 4 months’ imprisonment in 2007. She was then deported to South Africa. She came back this time in a different name. I am informed that the defendant is HIV positive.
The defendant has written a letter to this court saying that she is now very remorseful and apologises for what she has done to Hong Kong people. She asks for a lenient sentence.
In mitigation, Mr Haynes, counsel for the defendant, emphasised that the defendant was not a prime-mover or “a bigger potato” of this crime. He submitted that many oversea offenders do not realise the tariff for sentence for drug offences in Hong Kong until they are in gaol. He said the tariff is not a straitjacket and asked this court to give mercy to the defendant. Mr Haynes emphasised that the defendant was willing to co-operate with the authority to chase after the bigger potatoes. Although the assistance did not turn out to be fruitful, it did reflect the defendant’s remorse.
On behalf of the defendant, Father John Wotherspoon has also written to this court to ask for a lenient sentence. Father Wotherspoon is renowned for running a campaign in Hong Kong to stop drug traffickers coming to Hong Kong from Africa and South America. The campaign mainly consists of letters from inmates in Hong Kong which the Father has put on his website and referred to media and blogs in other countries with a view to expose to people in those places the serious consequence they might face in being used to traffic dangerous drugs to Hong Kong.
The Court of Appeal and also fellow judges in the Court of First Instance have commended Father Wotherspoon for his work in their judgments. According to the Father, the defendant and her family have been supporting his campaign.
Ms Chan, Senior Public Prosecutor for the prosecution, has referred to me two cases of the Court of Appeal concerning the participation in Father Wotherspoon’s campaign as a mitigation. The two cases are, namely, CACC 324/2015 and CACC 381/2015. Ms Chan submitted that it is the view of the Court of Appeal that such assistance should be rewarded by the use of the Executive power of clemency in appropriate cases.
Although I am of the view that it is not the Court of Appeal’s intention to bar the sentencing court to take into account this factor in considering sentence, I am not prepared to give any weight to this in sentencing the defendant as the present offence is the second time she committed drug trafficking in Hong Kong.
Trafficking in dangerous drugs is a serious offence. People committing the offence will inevitably be faced with a long imprisonment sentence. The length of imprisonment imposed depends mainly on the quantity of the drugs involved. For trafficking in cocaine, in considering sentence, this court should follow the tariff laid down by the Court of Appeal in The Queen v Lau Tak Ming [1990] 2 HKLR 370 and also HKSAR v Abdallah [2009] 2 HKLRD 437. As per the tariff set out in Abdallah, for trafficking in cocaine of a quantity between 600 grammes and 1,200 grammes, a starting point of 20 to 23 years’ imprisonment should be adopted.
In the present case, the quantity involved is 935.1 grammes. The appropriate starting point in my view should be 21½ years’ imprisonment. The defendant imported the cocaine into Hong Kong and this is an aggravating factor. Making reference to the guideline set out in HKSAR v Chung Ping Kun [2014] HKCU 1568, the sentence should be enhanced by 2 years.
The heavy sentence imposed for this kind of offence is for deterrence. Usual mitigations like financial hardship and family situation are not valid mitigating factors. The only mitigating factor in this case is the defendant’s early guilty plea. Full discount shall be given for the defendant’s guilty plea.
The defendant’s sentence shall therefore be reduced from 23½ years to 15 years and 8 months’ imprisonment.