The particulars of the 1st charge are that the 1st defendant, on the 2nd day of November 2019 at the Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 618 grammes of a solid containing 491.6 grammes of cocaine.
The particulars of the 2nd charge are that the 2nd defendant, on the same date and location as set out in Charge 1, unlawfully trafficked in a dangerous drug, namely, 165.7 grammes of a solid containing 134.31 grammes of cocaine.
They are committed to this court for sentence.
Admitted Facts
At 1550 hours on 2 November 2019, the two defendants who were about to board a ferry at the Transit Lounge E2, Level 5, Passenger Terminal Building 1 of the Hong Kong International Airport were stopped by Senior Customs Officer 97132 for customs clearance. Body search and search of their belongings did not reveal anything illegal.
The two defendants were sent to North Lantau Hospital to check if there was any internal concealment. In the hospital, 10 pellets were found in the sanitary napkin worn by the 1st defendant inside her underpants. The 10 pellets were confirmed to be 10 plastic packets containing a total of 114 grammes of a solid containing 93.6 grammes of cocaine. While being arrested and cautioned, the 1st defendant said she did not want to say anything.
X-ray examination of the two defendants revealed that there were foreign objects inside their body cavities. They were transferred to Queen Elizabeth Hospital. They both remained silent under caution and in the interview conducted on 4 November 2019.
Between 2 and 6 November 2019, the 1st defendant discharged a total of 43 pellets in Queen Elizabeth Hospital, which were confirmed to be 43 plastic packets containing a total of 504 grammes of a solid containing 398 grammes of cocaine.
Between 2 and 5 November 2019, the 2nd defendant discharged 13 pellets in Queen Elizabeth Hospital, which were confirmed to be 13 plastic packets containing a total of 154 grammes of a solid containing 125 grammes of cocaine. On 6 November 2019, while at Tai Lam Centre for Women, the 2nd defendant discharged a further pellet which was confirmed to be a plastic packet containing 11.7 grammes of a solid containing 9.31 grammes of cocaine.
The estimated street values of the cocaine seized from the 1st defendant and the 2nd defendant were respectively $648,900 and $173,985.
Criminal Records
Both defendants have a clear record in Hong Kong.
Mitigation
The 1st defendant is aged 47 and is a first offender. She is separated and has a 9-year-old son in Kenya. Mr Arthur, representing the 1st defendant, submits to court a photograph of the son of the 1st defendant and also a letter from Father Wotherspoon saying that the 1st defendant helped in his campaign to stop people bringing dangerous drug to Hong Kong.
Mr Arthur points out that the 1st defendant, being an unsophisticated courier, was at the lowest rank. He says that according to the sentencing tariffs, the starting point for trafficking in the amount of 491.6 grammes of cocaine is about 17 years imprisonment. Mr Arthur asks the court to impose the shortest possible sentence on the 1st defendant.
The 2nd defendant is aged 53 and has no criminal records. She is married and her husband is a retired pastor. She worked as a receptionist in a government-connected organisation for about 30 years with good salary. Mr Bullett, who represents the 2nd defendant, says that according to sentencing guidelines, for trafficking in the amount of 134.31 grammes of cocaine, the starting point is about 10 years 3 months imprisonment.
He argues that on the Summary of Facts admitted by the 2nd defendant, there is no mention that she had taken the dangerous drug to Hong Kong from another country. The court therefore cannot take that matter into consideration in sentencing. Mr Bullett cites the case of HKSAR v Wasim [2020] 2 HKLRD 1139 in support.
Mr Bullett further says that should the court disagree with him, the enhancement of sentence for international element should not be more than 3 months.
He submits a letter of Father Wotherspoon to show that the 2nd defendant took part in the campaign of the priest in stopping people to take dangerous drugs to Hong Kong.
He also submits a mitigation letter written by the 2nd defendant. In the letter, the 2nd defendant apologizes to Hong Kong people for bringing the dangerous drug to Hong Kong. Her purpose of going to Macau was to attend a workshop on robots and she was stupid in taking the dangerous drugs with her. She worked for the Kenyan government with Teachers Service Commission, earning a good salary for 30 years. She promises not to traffic in dangerous drug again. She now realises the harm dangerous drugs do to people. She asks the court to be lenient to her.
Mr Bullett tells the court that the 2nd defendant suffered from cancer in the past. He asks the court to impose the shortest possible sentence on the 2nd defendant.
Sentence
The Court of Appeal set out sentencing guidelines for trafficking in cocaine in AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming and Others [1990] 2 HKLR 370. For a quantity of 50 to 200 grammes of cocaine, the starting point is 8 to 12 years imprisonment and that for 400 to 600 grammes of cocaine is 15 to 20 years imprisonment.
In respect of the 1st and the 2nd defendant, the quantity of cocaine involved are respectively 491.6 grammes of cocaine and 134.31 grammes of cocaine, which entail a starting point of approximately 17 years 3 months imprisonment and 10 years 3 months imprisonment. The court adopts them as the basic starting points in the sentence of the two defendants.
The 1st defendant has no dispute that she travelled to Hong Kong from another country, taking along the dangerous drug. The 2nd defendant however argues that there is nothing in the Summary of Facts admitted by her that she had travelled to Hong Kong from overseas. The court has no hesitation to reject such an argument. The 2nd defendant together with the 1st defendant were found in the Transit Lounge of the Hong Kong International Airport. The only reasonable inference is that they both travelled to Hong Kong from overseas with the dangerous drug concealed inside their body cavities while the 1st defendant also had dangerous drug hidden in the sanitary napkin she was wearing.
It was said in HKSAR v Wasim that for international elements in trafficking to be an aggravating factor, it must go to the aggravation of the offence. In R v Qasim CACC 332/2018, which was affirmed in HKSAR v Fong Yau Heung CACC 173/2020, it was said that the degree of enhancement of sentence on ground of international elements will depend on the circumstances under which the dangerous drug was brought into Hong Kong and the distinction is to be drawn, for example, between cases of elaborate arrangements of an international syndicate crossing continents from a foreign country with the dangerous drug secreted within luggage or body of a person and merely going to post office to collect a parcel of dangerous drug from a foreign country.
Judging from the way the dangerous drug were brought into Hong Kong by the two defendants, this is a typical case of smuggling the dangerous drugs through elaborate arrangements. There must be an aggravation of the offence. Having considered the cases such as HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] HKCU 1568, the court enhances the starting point of the 1st defendant by 9 months to 18 years imprisonment and that of the 2nd defendant by 4 months to 10 years 7 months imprisonment.
Both defendants assisted Father Wotherspoon in his campaign to stop people being exploited to bring dangerous drugs to Hong Kong. For this, the court reduces the starting point of the 1st defendant to 17 years 9 months imprisonment and that of the 2nd defendant to 10 years 4 months imprisonment.
Giving credit to the 1st defendant for her guilty plea and other mitigating circumstances, the court sentences her to 11 years imprisonment.
Giving credit to the 2nd defendant for her guilty plea, the court sentences her to 6 years 10 months imprisonment.