COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug before a magistrate on 25 November last year. In the particulars of offence, it is stated that on the 24th day of September 2023, in Hong Kong, he unlawfully trafficked in 707.4 grammes of a solid containing 426.95 grammes of cocaine.
According to the Summary of Facts to which the defendant agreed at the time of his guilty plea, he arrived in Hong Kong at about 6 pm on 24 September 2023 by direct flight from Paris in France. Upon arrival, he was on a wheelchair being pushed by a staff member of the Hong Kong International Airport. After going through the arrival clearance, he was pushed into the arrival hall and then to a counter of the Airport Express.
After the airport staff had left, the defendant started walking and wandered around in the airport until 12.17 am on 25 September. And then he walked to the drop-off area at No. 4 Carpark outside the Regal Airport Hotel and stayed in that area.
At about 5.55 am on 25 September 2023, a staff member of the airport was instructed by the control room to go to have a look because it was reported that an unknown male was seen climbing the bush at the No. 4 Carpark. That staff member attended the scene at about 6 am and saw the defendant there. The staff member tried to talk to the defendant in English but in vain. So he called the police.
Upon police arrival, it was found that the defendant was emotional and talking nonsense. He was sent to the North Lantau Hospital by ambulance. Preliminary examination by the doctor in the hospital found that he might have possessed suspected dangerous drug inside his body. He was arranged to undergo X-ray which revealed that he had multiple oval objects inside his body. Then he was transferred to the Princess Margaret Hospital, and eventually, the medical officers there removed a total of 57 capsules of suspected dangerous drug from his rectum.
Upon examination by the government chemist, it is confirmed that the 57 capsules contained all the drugs now particularised in the charge. The street value of those drugs was HK$470,071.
The defendant admits that on 24 September 2023, in Hong Kong, he unlawfully trafficked in the dangerous drug that is now particularised in the charge.
The defendant is of Dutch nationality and he has no criminal conviction in Hong Kong. He is now 61 years old, and he was aged 60 at the time of the offence.
In mitigation, defence counsel Mr James Sherry informed me that he used to live with his family members in Netherlands, that he had previously worked as a car mechanic and obtained a bank staff diploma. He was very fond of cooking and he has a big family including 14 children and 22 grandchildren. He has suffered three strokes which resulted in some degree of diminished mental capacity. For the past 20 years before his arrest, he had relied on social security to assist with his daily living needs.
Counsel submitted that the reason of his offending was that he hoped to get quick money so that he could purchase a mobility scooter for himself.
In mitigation, counsel also submitted a total of four mitigation letters prepared by family members of the defendant, asking for lenienct treatment by this court. Counsel rightly accepted that the only mitigation available is his early plea at an early stage. Counsel said that his role and culpability was nothing more than a courier in this drug syndicate and his sentence should lie at the bottom of the sentencing tariff.
Counsel rightly recognised that the case is also aggravated by an element of cross-border trafficking. That means there is an international element in the commission of this offence.
In mitigation, counsel also mentioned that the defendant had assisted Father John Wotherspoon in his anti-trafficking campaign by having his story published on a website. Counsel said the defendant has done what he can do to deter future traffickers from making the same mistake that he did.
In sentencing the defendant, I do bear in mind the approach mentioned by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. In respect of the 426.95 grammes of cocaine narcotic involved in this case, according to the revised guideline in the case of HKSAR v Huang Ruifang No. 3 [2025] 2 HKLRD 138, the tariff for trafficking in between 200 and 500 grammes of cocaine narcotic is a starting point of 12 to 16 years’ imprisonment after trial. So on an arithmetic calculation, the starting point for 426.85 grammes of cocaine narcotic should be one of 15 years’ imprisonment.
As the Court of Appeal has made very clear in different authorities, the mathematic starting point is suitable for people like couriers or storekeepers who are at the lowest bottom of the drug-trafficking hierarchy.
In respect of the starting point to be taken after consideration of a person’s role and culpability, I should take into account the fact that the defendant was a drug mule being used in the international importation of the cocaine into Hong Kong, and the international element must be assessed as part of the role and culpability as stated in the authority of Lee Ming Ho.
In the case of HKSAR v Rahman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal stated that the international element may be reflected in the roles and culpability of individual defendants but this is merely a factor or circumstance of the commission of the offence, albeit one which normally makes the defendant’s role and culpability more serious and enhances the starting point for sentence. The international element applies to the sentencing of drug mules in Hong Kong because the drug mules are still fuelling the supply of drugs in Hong Kong and causing harm to the individuals and the society of Hong Kong regardless of his own personal
background and circumstances. Moreover, they must have fully understood their acts and the consequences of their illegal act.
So taking into account the defendant’s actual involvement in the importation of the cocaine into Hong Kong, that is, the international element, in respect of this defendant I consider the notional starting point after trial should be enhanced by 6 months to that of 15½ years’ imprisonment.
The defendant pleaded guilty to the offence at the earliest opportunity. As such he is entitled to the full one-third discount.
In respect of his participation in Father John’s campaign, the Court of Appeal has considered this matter in the case of HJKSAR v Kilima [2018] 5 HKLRD 88. The Court stated that sentencing judges are allowed a discretion of a token discount for this factor, pointing out that it may still be in the public interest to encourage a prisoner’s efforts in this regard. However, that assessment must be in the absolute discretion of the sentencing court.
In the case of HKSAR v Cherop Caroline [2021] 3 HKLRD 904, the Court of Appeal pointed out that sentencing judges must look at the letters prepared by the defendants themselves and consider the substance of the letters as well as when and how they had been written if the judges were to properly act on the letters in exercise of their discretion. The Court of Appeal reiterated that a discount of up to 3 months represents the ceiling for taking part in Father John’s campaign and it is exceptional. Judges are perfectly entitled in the exercise of discretion to give no discount for this factor at all.
Coming back to the present case, I have read the letter prepared by the defendant. It is indeed a letter that was prepared in the Dutch language, and the English translation of that letter was published in an article in Father John’s campaign.
In that letter, the defendant stated that he is detained in a foreign country, that life under detention has been very difficult and makes him very sad. He said his communication with people here is difficult because his English is not good. He said he misses his family members especially his grandchildren. He said his life in prison is very tough, and he is far away from home and family.
He said those people who sent him to do drug trafficking in Hong Kong were strangers to him. In this letter he also warned people not to engage in drug trafficking in Hong Kong because Hong Kong imposes very harsh sentences. “If you are caught, you will be imprisoned for a long time.” and it is not worthwhile to take the risk. He warned people that Hong Kong enforces extremely strict laws, and the Hong Kong’s prison system and justice procedures are rigorous and unforgiving.
This is the letter that was written by the defendant, and I understand that it was published on the Father John’s website on 14 April. That was what I was told by counsel.
There was also a hand-written note from Father John, saying that there was a letter from the defendant, a person -- a Dutch who has 22 grandchildren, talking about the pain of being away with his family, the difficulty of communicating with his family, his remorse and his warning to others not to engage in illegal activities.
As far as information about drug trafficking is concerned, it appears from the material that has been placed before me that he had given a name of a man called Tony with the nickname Batman. He told Father John that a friend of Tony gave the drugs to him to ingest and for delivery to Hong Kong, and he said that Tony was a big drug boss in Amsterdam and had been there for at least several years.
There is a handwritten note, apparently prepared by Father John, saying that no reply has been received from the authorities in Holland. It appears, from the information before me, this Tony was identified not through the effort of the defendant but by the other African inmates who had given more information about Tony to Father John. That is all the information he had provided to Father John’s programme.
Having considered all the material placed before me, I do not consider that it contains any valid or useful information that may be fruitful in the investigation of the drug-trafficking campaign in Holland. The fact remains that nobody was arrested as a result of the information given by this defendant. I am unable to assess the contribution of this defendant to the result of any particular information provided, any particular seizure or arrest.
I consider the fact of whether he has made any meaningful contribution to Father John’s campaign should be a matter to be left for the Executive to address in due course. Therefore, I decline to give him any further discount in respect of this matter.
Coming back to the circumstances. I consider that the only valid mitigating factor is the early guilty plea by the defendant which entitles him to the full one-third discount of sentence. That will reduce the sentence from the starting point of 15½ years to one of 10 years and 4 months’ imprisonment. So the ultimate sentence to be imposed on the defendant is 10 years and 4 months’ imprisonment.