COURT: On 30 May this year the defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, before a magistrate. He was committed to the Court of First Instance for sentence.
It is alleged that on 28 February 2023, at the Hong Kong International Airport, he unlawfully trafficked in a total of 502 grammes of the ‘Ice’ narcotic, methamphetamine.
According to the Summary of Facts to which he agreed at the time of his plea, on 28 February 2023, he arrived at the Hong Kong International Airport from Uganda via Ethiopia. When he was going through the customs clearance, three garments, namely one jumpsuit, one bathrobe and one towel, which were exceptionally hard, were found inside a backpack which he admitted to be his. Subsequent examination by the Government Chemist confirmed that the three garments contained a total of 696 grammes of a solid containing 502 grammes of methamphetamine. I will call it ‘Ice’ in the rest of my sentencing reasons. The total retail value of the drug concerned was about HK$338,256.
Upon his arrest, the defendant stated under caution that the three garments were given to him by William and he would be rewarded an unspecified sum of money for bringing the garments into Hong Kong. He claimed that he did not know William’s full name or contact. It is also agreed that after his arrest, he participated in a preliminary enquiry under caution and he asserted that he communicated with William in English via WhatsApp. He provided a passcode to his mobile phone and consented to participating in a controlled delivery operation, which turned out to be unsuccessful.
His mobile phone was also examined and it was discovered that between 25 and 28 February 2023, there were text and voice messages exchanged between him and William, which shows that Ugandan money was given to him by William and that he was constantly reminded to report his whereabouts.
In a subsequent video-recorded interview, the defendant said he sold clothes for a living and he was in debt. Therefore he needed money to take care of his family and his sick children. His trip to Hong Kong was arranged by William who booked the air tickets, arranged the accommodation and packed his backpack. It was William’s plan for him to stay in Hong Kong for about a week. The purpose of the trip was to bring the three garments to a friend of William’s in Hong Kong. He was also told to take something from that friend. In return, William would help him to look for a job in Uganda, and would split the profits with him after “the things” were sold. He alleged that he had no idea of what “the things” were. He said he saw and touched the garments in his backpack. William told him that if anybody asked, he should say that the garments were hard because they had been dry-cleaned.
The defendant now admits that at the material time, he unlawfully trafficked in the ‘Ice’ found in his possession by importing them into Hong Kong.
The defendant is a Ugandan male who is now 29 years of age. He was 28 years old at the time of the offence. He has no criminal conviction in Hong Kong. He claimed that he had not received any education. He sold second-hand clothes for a living and could earn roughly HK$620 per month in Uganda. He said he was married with three children and he lived in Uganda with his family.
In mitigation, counsel Ms Elizabeth Herbert urged this court to take into account the following matter. First of all, that he pleaded guilty to the offence. Indeed counsel said that he committed the offence because his earnings were insufficient to sustain the family and he was under additional pressure because his children fell sick, so he was asked by William to do this job by taking the drug to Hong Kong. He agreed to the scheme due to his financial hardship at the time. All the travel arrangements were being made by William. Counsel also submitted that the Ugandan money, that is, the Ugandan Shillings of $341,000 (which is equivalent to around HK$721) were given to him by William. Counsel urged this court to take into account his early plea of guilty which entitles him to the full one-third discount.
Counsel also referred to the Summary of Facts which stated that he agreed to take part in a controlled delivery operation but it was ultimately unsuccessful. Apparently, from the statements of the customs officers, he assisted in the controlled delivery operation by taking part in a number of calls with a contact person who eventually instructed him to go to the hotel before they made further contact. But, for unknown reasons, he was not taken to the hotel and the operation was terminated without any fruitful result. Counsel said that a significant discount should be given to his assistance in the controlled delivery.
Counsel also urged this court to take into account his contribution to Father John Wotherspoon’s campaign, and supporting documents and a letter prepared by Father Wotherspoon were submitted to this court.
In a letter dated 28 September this year, Father Wotherspoon stated that he first met the defendant at the Lai Chi Kok Reception Centre shortly after the arrest in February 2023. He said the defendant gave him the location and the name used by William, his recruiter. So he provided the information to a police officer in Uganda. Subsequently, the wife of the defendant also took part in meetings between Father Wotherspoon, the police officer and the narcotics officers in Uganda. Apparently, all those information, even though it led to the identification of William and/or his associates, it did not result in any fruitful or successful arrest or operation. However, Father still considered that he had significant participation, and stated that he had written a letter dated 6 June 2024 which described his remorse, the terrible effects of his incarceration in Hong Kong, and also a warning to others not to make the same mistake.
In sentencing the defendant, I 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 modified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
In respect of the narcotic content of the drug involved in this case, it was 502 grammes of ‘Ice’ narcotic. According to the guideline case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the tariff for trafficking in 300 to 600 grammes of ‘Ice’ should be 15 to 20 years’ imprisonment after trial. So on an arithmetic calculation, for 502 grammes of ‘Ice’ narcotic, the starting point after trial should be one of 18 years and 4 months’ imprisonment.
As the Court of Appeal has made it very clear in many different authorities, the arithmetic starting point is suitable for people like couriers or storekeepers. That means people at the lowest bottom of the drug trafficking hierarchy. In respect of the notional starting point to be taken after consideration of his role and culpability, I take into account the fact that he was a drug mule being used in the international importation of the ‘Ice’ into Hong Kong. I accept counsel’s submission that he was a mere courier. However, being a courier does not mean that this matter is not aggravated by the international element. The international element must be assessed as part of the role and culpability as the authority of Lee Ming Ho has stated.
Taking into account his actual involvement in the importation of the drug into Hong Kong, that is, the international element, I consider that the notional starting point after trial should be 19 years and 3 months’ imprisonment, that is, 231 months. The defendant pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount.
In respect of his participation in the controlled delivery, the prosecution advised me there was nothing to supplement and the prosecution accepted the submission by defence counsel in her mitigation.
I have borne in mind what the Court of Appeal stated in the case of HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309. In that case, the Court of Appeal considered that the 33.3 per cent to 40 per cent discount range would be suitable for a defendant who has made a genuine attempt to assist the authorities, his assistance being helpful but not assess to be of particularly great value. For example, in an unsuccessful controlled delivery. In granting the additional discount, the sentencing court should bear in mind that the assistance being rendered is both limited and unfruitful in nature. The court also said that there would need to be something quite exceptional to justify a discount as much as 40 per cent which is the high watermark for this form of assistance.
I have taken into account the participation of the defendant in the unsuccessful controlled delivery and also the fact that it would be encouraging for arrested persons to take part in similar operations in future. From the information before me, there is nothing to suggest that the failure of the operation was in any way attributable to the defendant. As such, I consider that, including the discount for his plea of guilty, a total discount of 37 per cent should be given to him, that is, to award his plea of guilty and also his participation in the unsuccessful controlled delivery. So the sentence would be reduced to one of 12 years and 2 months’ imprisonment, that is, 146 months.
In respect of his participation in Father Wotherspoon’s programme, the Court of Appeal has considered this matter in the case of HKSAR v Kilima [2018] 5 HKLRD 88. In that case, Macrae JA stated at paragraph 91:
“This court, comprising both of my two colleagues...”
Pausing here, that means Lunn JA and also McWalters JA.
“...comprising both of my two colleagues on this appeal, has already twicw said that post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the Executive. I consider that is right for the reasons they have given and that this court should adhere to its earlier decisions on this matter. Nevertheless, I will still permit sentencing judges a discretion to allow a token discount for this factor. Although such contributions to Father Wotherspoon’s campaign do not amount to either positive good character nor are they readily borne of remorse, it seems to me that it may still be in the public interest to encourage a prisoner’s efforts in this regard. That assessment must be in the absolute discretion of the court, an exercise with which this court will not lightly interfere, but I cannot for myself envisage any circumstances which might warrant a deduction of more than 3 months for this factor.”
And, in the same judgement, Lunn JA also considered that 3 months is to be regarded as the maximum discount to be afforded in similar circumstances.
I have borne in mind the matters mentioned in Father Wotherspoon’s letter and all the attached documents. I also bear in mind the assistance given by this particular defendant as well as his wife back in Uganda including the meetings with the officials, even though I cannot see why the officials can lawfully take money from the family members or from the Father. I don’t even know whether that kind of dealing is lawful or not lawful in Uganda.
But having considered all the circumstances, I consider that it is appropriate to give him a generous discount of 2 further months in his sentence, just to give him the encouragement to continue the participation in Father Wotherspoon’s programme. Therefore, the total sentence of the defendant is reduced from 12 years and 2 months’ imprisonment to 12 years’ imprisonment.
So 12 years is the ultimate sentence that I impose for this offence.