COURT: Defendant, you pleaded guilty to one charge of trafficking in dangerous drugs on 25 March 2024 before a magistrate at the Eastern Magistracy. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
You admitted that on 22 May 2023 at the Customs Arrival Hall, Passenger Terminal 1 at Hong Kong International Airport, Chek Lap Kok, Lantau Island, you unlawfully trafficked in 967 grammes of a solid containing 824 grammes of cocaine.
You admitted the Summary of Facts dated 19 February 2024. The facts in support of this charge can be set out as follows. On 22 May 2023, at about 4.30 pm, you a Brazilian national were intercepted upon your arrival in Hong Kong at the Customs Arrival Hall B at Hong Kong International Airport. Your suitcase and body were searched and no contraband was found. As your hotel booking dates were inconsistent with your flight arrival dates, and you could not tell the Customs officers your concrete itinerary in Hong Kong, it was suspected that dangerous drugs were hidden inside your body.
At about 6.48 that day, you were escorted to the North Lantau Hospital where you excreted pellets of cocaine. You were then arrested. Shortly before midnight that day, you were escorted from North Lantau Hospital to the Queen Elizabeth Hospital where you stayed until 27 May 2023. During your stay at these two hospitals, between 22 May and 25 May 2023, you excreted a total of 139 pellets containing cocaine from a total of 20 excretions. The pellets contained the quantity of drugs as specified in the charge.
The estimated street value of the drugs was HK$1,068,535.
Various items were seized from your person, including cash of US$1,004 and 1,102.05 Brazilian reals. Your flight itinerary and boarding passes show that you left Brazil on 20 May 2023 and arrived in Doha on 21 May, then took a flight from Doha to Hong Kong on 22 May. You were due to return from Hong Kong to Doha then to Sao Paulo on 15 June. Your arrival date back in Sao Paulo would have been 16 June 2023. According to the airline records, your tickets were all paid for in cash.
I turn to your background and mitigation to which your counsel, Mr Duncan Percy, has given full written submissions and elaborated upon that in court. You are a Brazilian national and are presently aged 43. You are a single mother of three children aged between 22 and 10 years old. Prior to your arrest, you were working for some 15 years as an assistant in a home for the aged earning approximately 600 Brazilian real per month. A large proportion of your meagre salary, Mr Percy tells me, went to supporting your parents and family. You are a person of clear criminal record and have received primary education.
Mr Percy has informed this court that this is your first time leaving Brazil and of course you have never been to Hong Kong before. He has informed this court that because your native and only language is Portuguese, you have little to no understanding of Cantonese and English. This, he informs me, has caused you mental anxiety and distress and your being imprisoned has exasperated by your inability to communicate with prison staff or medical officers and has resulted in your isolation from other inmates because you can only communicate in Portuguese. You have complained about the lack of social interaction, depression, and poor sleep.
Mr Percy has asked this court to take this matter into account as a mitigating factor and relies upon the case of Pedro Nel Rojas of the Court of Appeal whereby the court can take into account that foreigners is a factor for consideration in determining the totality of sentence but accepts that the Court of Appeal said it does not affect the sentence to any substantial degree.
Defendant, you have expressed in your heartfelt handwritten letter your remorse about your wrongdoing. As Mr Percy has emphasised, it is clear from your words that you have demonstrated deep regret, falling into temptation and your remorse which is shown in your early plea of guilty.
I have also been informed as regards your medical condition that you had previously suffered a fall from the 5th floor of a building whilst working in the home for the aged and seriously injured yourself, requiring metal implants throughout your body. I have not had before me a medical report from an orthopaedic but I have before me a medical report from the medical officer of the local correctional institution. That report is dated 20 August 2024.
It is said there that you reported history of fracture over your left femur and right ankle after falling from a height around 5 years ago with an operation done and implant inserted. This was followed up at the department of orthopaedics and traumatology at Queen Elizabeth Hospital on 4 July 2024.
Otherwise, the officer, medical officer stated there are no other physical or mental illnesses reported. There were no active complaints and no abnormalities at physical examinations were recorded upon each admission. The medical report goes on to conclude that you were all along physically stable during your stay at the institutions. You refused to be interviewed by an institutional psychologist for assessment on 3 June 2024. Your x-ray report of the right ankle, lumbar, spine, sacrum, left femur, and left hip, on 18 July 2023 showed previous operation for calcaneal fracture, minimal degeneration of lumbar spine and intramedullary rod in situ with healed fracture at mid-shaft of femur.
As stated in your letter and by Mr Percy, the reason for you committing this offence was because you were in a difficult economic situation. You were motivated to go on this risky expedition as you had hoped your parents would live their final days in a home of their own and not in rental accommodation. It is my understanding from Mr Percy’s mitigation that you took, you were tempted with this high risk job as a courier in order to possibly purchase accommodation for your parents.
I turn now to sentence. The sentencing approach in sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application of the principles and steps are as follows.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug heroin and cocaine, is that as set out in R v Lau Tak Ming [1990] 2 HKLR 370, and for large amounts, the tariff case authority is Abdallah [2009] 2 HKLRD 437. The total narcotic in this case is 824 grammes of cocaine. The relevant band applicable to the quantity of drugs concerned is that between 600 and 1,200 grammes where a sentence of between 20 and 23 years’ imprisonment is appropriate after trial.
The second step is to assess the role and culpability of the defendant based on the evidence, including the international element involved. Defendant, you were a courier from abroad travelling from Brazil through Doha to Hong Kong who had ingested 139 pellets containing cocaine. By arriving into Hong Kong, you were importing drugs into Hong Kong.
The third step is to identify where in the relevant band you fall. For trafficking in 824 grammes of cocaine, an appropriate starting point after trial would be one of 21 years’ imprisonment. In HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal in that case in April of this year held that the international element was to be considered as part of the assessment of the offender’s role and culpability. International element is really the fact that these drugs were brought into Hong Kong from another country.
In this case, defendant, there is clearly an international element as you brought these drugs from abroad into Hong Kong. You were a willing and voluntary participant who deliberately concealed drugs in your body to attempt to avoid detection from the authorities. You knowingly came into Hong Kong, a foreign country to you, knowing of the risk that you may be caught and arrested. For the international element, I shall increase the starting point by a year so that the notional starting point is now on 22 years’ imprisonment. There are no aggravating factors in this case.
Turning to mitigating factors. Firstly, the fact that you committed this offence because of financial difficulties is not a mitigating factor. As clearly laid down in paragraph 69 of Raman Kapusamy, the Court of Appeal said:
“Anyone who bring dangerous drugs across the border is fuelling the supply of drugs on the streets of Hong Kong with all the terrible consequences they bring for individuals and society, whatever the unfortunate circumstances of their background and involvement. It is of little comfort to the families and communities
whose lives are blighted by dangerous drugs to know that the defendant who brought the drugs into Hong Kong had financial problems who drove him to commit such a serious crime against our citizens in Hong Kong or of another country.”
Therefore, your personal circumstances, for the reasons you have stated of financial difficulties, count for nothing.
Turning to your social isolation and language barrier during your term of imprisonment. Mr Percy has relied on the case of Pedro Nel Rojas. I have considered that case along with my learned late brother’s case, Deputy Judge Gerald McCoy in HCCC 264/2001, HKSAR v Chau Chun Yee. In his usual thorough manner, Deputy High Court Judge McCoy SC traversed a long history of decided cases and cases from abroad regarding foreigners serving sentences of imprisonment in Hong Kong. I shall not reiterate all that he has said but have considered it and I agree with his analysis. It is opportune for me to say that my late learned brother, stated at paragraph 38(F) the following when considering about the foreigner in Hong Kong’s prisons:
“It may be some classes of offence, for example drug trafficking, where because of the duty underlying Hong Kong has to the rest of the world, that the dislocation factor, that is the foreigners, should, on proper analysis, be given no weight at all. It does not fall for me to decide that issue here but I would tentatively conclude that drug trafficking, organised serious crime and corruption cases must be in the same way dealt with on this issue as immigration offences, where this potential element of mitigation carries no weight. Of course, it would be an unhappy irony if an offender who breached immigration laws, could thereupon claim a dislocation factor reduction, for being a non-resident.”
(G):
“Even if the dislocation factor is established, a court may also, on proper analysis, give those factors no weight, where such a person has deliberately come to Hong Kong to commit a crime in contrast to a person who, while in Hong Kong, commits a crime.”
In this case, it is clear that the defendant is one of those offenders who came to Hong Kong to commit a crime and to commit a very serious crime. She did so with open eyes knowing of the risks involved. Although I have every sympathy for the defendant’s difficulties and her language barrier, I am unable to give this matter any weight at all in mitigation.
The greatest mitigating factor, defendant, is clearly your early plea of guilty. And for this, you will receive the usual one-third discount. Defendant, the notional starting point being one of 22 years’ imprisonment, giving you the full one-third discount, your sentence shall be reduced to 14 years and 8 months’ imprisonment.
The sixth step is for me to observe the overall sentence passed and ensure that it is fair, just, and balanced in all the circumstances of this offence and of you, the offender. I consider that it is so.