COURT: The defendant pleaded guilty before a Magistrate on 18 January 2024 to one count of a trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the Court of First Instance for sentence.
The defendant admitted that on 25 October 2022, at the Customs Arrival Hall B, Passenger Terminal 1, Hong Kong International Airport, she unlawfully trafficked in a dangerous drug, namely, 423 grammes of a solid containing 365 grammes of cocaine.
She comes before me today for sentence, having confirmed her plea and admitted the Summary of Facts in support.
The facts
The Summary of Facts revealed that in the afternoon of 24 October 2022, the defendant was refused landing when she presented herself for arrival clearance at the Hong Kong airport. The defendant was suspected to have internal concealment of dangerous drugs inside her body and was escorted to North Lantau Hospital for examination.
At 2.05am on 25 October 2022, the defendant discharged 4 pellets of cocaine wrapped by plastic wrap at the toilet of the hospital and was thus arrested. Under caution, she denied knowledge of the contents of the pellets and claimed that her husband asked her to swallow them at their home in Johannesburg and take them to Hong Kong. She was asked to contact her husband’s brother upon arrival at the hotel in Hong Kong. Yet she was unable to provide the contact number of her husband’s brother.
While she was being detained in the hospital, the defendant discharged 27 pellets of cocaine wrapped by plastic wrap. At around 5am on 25 October 2022, the defendant was escorted to Queen Elizabeth Hospital for further examination, and during her stay egested 16 pellets of cocaine wrapped in plastic wrap.
The defendant remained silent during a cautioned interview.
The government chemist confirmed the 43 packets consisted of a total of 423 grammes of a solid containing 365 grammes of cocaine narcotic. The estimated market price of the cocaine involved was HK$365,049.
The defendant now admits and accepts that at all material times, she knowingly trafficked the cocaine involved in this case.
Mitigation
The defendant is a 30 years old Zambian national with clear record in Hong Kong. She is married with two sons aged 10 and 5. She divorced her ex-husband in November 2016. Before the offence, she claimed to work as a financial consultant in Zambia and was the sole breadwinner of her family.
In mitigation, Mr Li said that the defendant was asked to take up work for her ex-husband to repay money he spent on her. Consequently, the defendant committed the present offence. Mr Li said the defendant has been extremely remorseful for committing the offence and participated actively in Father Wotherspoon’s anti-drug campaign, including providing information about the drug lords in Johannesburg and engaging her family in Africa to offer their assistance. Mr Li has said everything he could for the defendant.
I have read the mitigation letters prepared by the defendant’s eldest son and her two sisters. Her sisters expressed that the defendant is a loving mother and the children are still struggling to come to terms with her absence. They all pleaded for a lenient sentence.
I have been told that during her detention, the defendant successfully completed a distance learning programme offered by the Hong Kong Management Association in handling customer complaints and developing business opportunities from complaints as well as some bible study courses.
Sentencing Principles and Tariffs
Trafficking in dangerous drugs is a very serious offence. The leading modern approach to sentencing in cases of drug trafficking was set out in Herry Jane Yusuph [2021] 1 HKLRD 290.
In sentencing, I shall follow the six-step approach in Herry Jane Yusuph.
Step one is to assess the gravity of the offence. The Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in dangerous drugs. These guidelines are based on the quantity of the narcotics involved.
The relevant sentencing guidelines for cocaine are set out in Lau Tak Ming [1990] 2 HKLR 370. For the quantity of 365 grammes of cocaine in this case, it is in the band of 200 to 400 grammes, where the starting point for traffickers after trial, subject to any enhancement, is 12 to 15 years’ imprisonment.
Steps two and three involve an assessment of the offender’s role and culpability, and to identify where in the relevant band the defendant comes.
The role of an accused in aspects of trafficking can vary significantly. The guidelines to which I have referred were set for defendant who was involved in trafficking at the lowest level of culpability, namely as a courier or a storekeeper. I accept Mr Li’s submission that the defendant’s role comes within that of a courier. The defendant has said under caution that her ex-husband asked her to swallow pellets of cocaine in Johannesburg and take them to Hong Kong.
I accept the relevant sentencing band of 12 to 15 years’ imprisonment for the weight of the narcotic contents should be applied in this case. A strict arithmetical calculation of weight-based starting point is one of 14 years and 5 months. That is the appropriate range for someone who has been convicted after pleading not guilty.
Mr Li rightly accepted that there is an international element, the defendant brought dangerous drugs over the border into Hong Kong from South Africa. In HKSAR v Lee Ming Ho [2024] HKCA 150; [2024] 1 HKLRD 1186 at paragraphs 58 to 74, the Court of Appeal considered that while the international element warranted a higher starting point, it is now generally considered as a factor when assessing the role and culpability of the offender in order to identify the starting point for sentence. That said, the court is still required to bear in mind the quantity of the narcotics being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes greater harm to the community.
Taking into account the role and culpability of the defendant and the international element, and the fact that she may not perhaps through naivety, fully appreciate the appalling consequences of the punishment that will be meted out when she is caught, I consider the appropriate starting point for this case is 14 years and 11 months.
Step four requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. There are no other aggravating features in this case.
Fifth, I am required to have regard to all mitigating factors. The Court of Appeal had said that personal circumstances count very little in cases such as these. The strongest mitigating factor in this case is the defendant’s timely plea. I will give the full one-third discount to the defendant. I will reduce the overall starting point to a term of 9 years and 11 months after rounding down.
Finally, I have two letters, the first from Father Wotherspoon outlining the defendant’s contribution to the anti-drug campaign, and the second from Ms Chow of the Voice for Prisoners. Ms Chow said that the defendant emerged as a leader among her African peers in prison and she assisted new African inmates. She works hard at the garment workshops and short university courses and religious courses.
Father Wotherspoon said the defendant was “one of the several prisoners who gave information that enabled him to produce a file” which he passed on to the authorities. He produced prison visit notes concerning the defendant. He said that her letter was one of the several letters he used as part of his anti-drug campaign to bring about a greater awareness of the punishment which those who bring drugs into Hong Kong can expect. He also said the defendant had a significant participation in his campaign.
As to the mitigation letter from Father Wotherspoon, the defence asked for further few months deduction and cited the case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88. It is not automatic that a defendant’s participation in Father Wotherspoon’s campaign will result in the “token discount” of up to 3 months, see paragraph 91. Macrae VP further stated at paragraph 92:
“...the discount for this factor, if it is considered at all, should be no more than a token one. We must not forget that trafficking in dangerous drugs is a crime of utmost gravity.”
Since this case, there are other cases regarding Father Wotherspoon’s mitigation letter, such as HKSAR v Castillo Caicedo Teresa [2022] HKCA 82, the court said in paragraph 60 of the judgment that it is discretionary.
Having read the letters, although its focus is on the defendant’s background and how easy it was for persons in financial difficulty to succumb to this, she has managed to get across her sense of guilt and her plight in Hong Kong, which is indicative of her further remorse to warn others. Having considered the defendant’s contribution and participation in the campaign, I will reduce the sentence by 3 months.
The context of the sixth and final step, as explained by Lee Ming Ho at paragraph 85, was about totality where more than one count is involved, or more than one aggravating feature is engaged. This was to ensure the sentence passed is a fair, just and balanced sentence in all the circumstances of the offence and the offender.
I am of the view that the ultimate sentence of 9 years 8 months’ imprisonment is appropriate.
The final sentence I would impose on the defendant is one of 9 years and 8 months’ imprisonment.