HKSAR v. MUSILI IRENE MWIKALI

HCCC 377/2024

[2025] HKCFI 4837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 377 OF 2024

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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 and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 4 November 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed her plea and her agreement to the Summary of Facts through counsel.

2.  The particulars of the charge state that on 27 October 2023, at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 709 grammes of a solid containing 590 grammes of cocaine.  

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows.  Around 5 pm on 27 October 2023, the defendant arrived at Hong Kong International Airport on a commercial passenger flight departed from Ethiopia.  She was refused entry by the Immigration Department and was taken to Customs Arrival Hall B, Passenger Terminal Building 1 of the Hong Kong International Airport for customs clearance.  Suspecting the defendant to have concealed dangerous drugs within her body, Customs and Excise (“C&E”) officers took her to North Lantau Hospital for medical examination.  X-ray revealed that there were foreign objects inside the defendant’s body.  The defendant was then arrested for drug trafficking.  Under caution, the defendant asserted that, inter alia, she had ingested an unknown number of foreign objects in Congo for US$500 reward, and someone would contact her after her arrival at her hotel in Hong Kong.  

4.  The defendant was later transferred to Queen Elizabeth Hospital.  In total, the defendant discharged from her body 60 pellets (Exhibit P1).  Laboratory test confirmed that the pellets were plastic wrappings containing a total of 709 grammes of solid containing 590 grammes of cocaine.  The estimated street value of the drug was HK$703,328. 

5.  C&E officers further found on the defendant, inter alia:  

(1) A mobile phone with two SIM cards installed;

(2) A mobile phone with one SIM card installed;

(3) Boarding passes of the defendant’s name for the following flights:

(i) Departing on 26 October 2023 from Kinshasa to Addis Ababa; and

(ii) Departing on 26 October 2023 from Addis Ababa to Hong Kong;

(4) A printout of a flight itinerary of the defendant showing that she was scheduled to:

(i) depart on 23 October 2023 from Nairobi to Addis Ababa;

(ii) depart on 23 October 2023 from Addis Ababa to Kinshasa;

(iii) depart on 26 October 2023 from Kinshasa to Addis Ababa;

(iv) depart on 26 October 2023 from Addis Ababa to Hong Kong via Bangkok;

(v) depart on 31 October 2023 from Hong Kong to Addis Ababa; and

(vi) depart on 1 November 2023 from Addis Ababa to Nairobi;

(5) A printout of a hotel reservation confirmation showing that the defendant had reserved accommodation at a hotel in Hong Kong from 23 October 2023 to 25 October 2023; and

(6) Cash of:

(i) US$280;

(ii) Guinean Franc 5,000; and

(iii) 1 Kenyan Shilling.

6.  The defendant’s mobile phones contained, inter alia, photographs of the boarding pass and flight itinerary.  

7.  At all material times, the defendant knew that all the pellets, ie, Exhibit P1, contained a dangerous drug, and she possessed all the drug for the purpose of unlawfully trafficking in its entirety. 

8.  Regarding the personal background of the defendant, the defendant is the holder of a Kenyan passport.  She was born on 21 November 1992 and is now 32 years of age.  The defendant has a clear record in Hong Kong and elsewhere.  The defendant was educated in Kenya up to College level.  

9.  She is married with two children.  Her first child was the result of an unexpected pregnancy that caused her to leave school.  However, with hard work and determination, the defendant returned to formal education and managed to qualify as a nurse.  

10.  Her husband had abandoned her and their family, and it is because of this financial desperation, I am told, that led her to smuggle drugs to Hong Kong.  

11.  The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band or bracket applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matter of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”.  

12.  Regarding the first step, for 590 grammes of cocaine, the applicable guideline tariff band is that of 16 to 20 years’ imprisonment: see HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138 at paragraph 62.  

13.  Second, concerning the defendant’s role and culpability.  I accept that the defendant was a courier, in that she brought the drugs from Ethiopia to Hong Kong.  However, this case clearly involves an international element.  This is an important factor when assessing the role and culpability of the defendant in order to identify the appropriate starting point for sentence.  I have to bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes great harm to the community: see HKSAR v Lee Ming Ho, supra, at paragraph 74. 

14.  Third, for 590 grammes of cocaine, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 16 years and 4 months’ imprisonment.  For the international element of this case as held above, I would increase the notional sentence after trial by 9 months, taking it to 17 years and 1 month’s imprisonment.  

15.  Fourth, I consider that there is no aggravating factors which would enhance the notional sentence after trial. 

16.  Fifth, as a matter of discretion, I would afford the defendant a discount of 3 months for her participation in Father Wotherspoon’s programme.  This would take the notional sentence after trial down to 16 years and 10 months’ imprisonment.  

17.  I consider that the only other mitigating factor which may reduce the defendant’s sentence is her timely plea, for which I will give her a one-third discount.  

18.  Accordingly the defendant’s sentence is reduced to 11 years and 2 months’ imprisonment. 

19.  Finally, I consider that a sentence of 11 years and 2 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and the circumstances of the defendant.  

20.  Defendant, you are accordingly sentenced to 11 years and 2 months’ imprisonment.