HKSAR v. UYS MARTIN

HCCC 149/2025

[2025] HKCFI 4378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 149 OF 2025

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to the offence of trafficking in a dangerous drug before a Magistrate on 22 April this year. In the Particulars of Offence it is alleged that on the 29th day of October 2023, at the Hong Kong International Airport, he unlawfully trafficked in 3,535.2 grammes of a solid containing 2,893.9 grammes of cocaine.

According to the Summary of Facts to which he admitted at the time of his guilty plea, he flew to Hong Kong from Nigeria via Frankfurt on 28 October 2023, and arrived at the Hong Kong International Airport on the following day, that is, 29 October 2023. He arrived at about 4.25 pm and was intercepted by the Customs Officers for a clearance check.

Upon a search of the suitcase that he was carrying, the officers found the suitcase was unusually heavy. X-ray image revealed that there was some items being hidden inside the lining at the back of the suitcase. When the lining was cut open, the Customs Officers found a total of 11 blocks of suspected dangerous drugs which upon examination by the government chemist confirmed to be the drug as particularised in the charge. The substance was also test positive for cocaine upon a rapid drug test.

The street value of the drug concerned was estimated to be around HK$3,506,900.

Upon his arrest for the offence of trafficking in a dangerous drug, the defendant said he had no idea what the substance was. He said he bought the suitcase in Nigeria for his own use and he did not receive any rewards for taking the suitcase. In the subsequent cautioned interviews, he said the drug did not belong to him and he had no knowledge of the drug.

The defendant now accepts and admits that at all material times, he knew that the suitcase contained the drug and he possessed the drug for the purpose of unlawful trafficking.

The defendant is a South African male who is now 23 years old. He was 21 years old at the time of the offence. He has a clear criminal record in Hong Kong and has received up to Secondary school education back in South Africa. He was a self-employed mechanical engineer earning an amount equivalent to HK$2,500 to HK$3,700 a month.

In mitigation, defence counsel Ms Lisa Remedios informed this court that the defendant was engaged at the time of his arrest. His mother had also written an email to testify to his good character. Counsel submitted that his role was merely a courier and he was only 21 years old at the time of the offence. However, counsel rightly accepted that the international element which is an aggravating feature is also involved in this case. I was informed that the defendant, when he was remanded in custody, had completed a number of correspondence courses and he is deeply remorseful.

The defendant’s mother has passed an email for mitigation purpose. In that email, she mentioned that the defendant was a very pleasant person to be around and he was never in trouble with the law before. In a letter written by the defendant to this court, the defendant said that he was really remorseful and this was his first offence. He said that at the time of this offence, he was going through a difficult time in his life and he was trying to do what he thought was the best for his family. Now he had learned a painful lesson and he regretted it deeply.

Counsel also submitted certain material prepared by Father John Wotherspoon and informed this court that the defendant had provided assistance to Father John’s anti-drug campaign. She asked this court to consider giving him a further discount for that matter.

In a letter prepared by Father John Wotherspoon dated 10 April this year, he confirmed that the defendant had helped his anti-drug campaign by providing information which he had forwarded to the authorities in South Africa, but apparently the colonel did not take any action on the information and no fruitful seizure or arrest had been resulted so far.

In the information attached to Father John’s letter, I could see that the defendant had provided certain information on telephone numbers and people’s names, and he also informed Father John that his family would try to get the photographs and addresses of the persons concerned. I could see from the correspondence between the Father and the mother of the defendant that actually certain passport photograph was also provided to the Father in order to assist him in relating the drug trafficking information to the relevant authorities in South Africa, even though it did not result in anything positive.

In sentencing the defendant, I do bear in mind the approach and the principles set out 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.

According to the new guidelines in the recent case of HKSAR v Huang Ruifang [2025] 2 HKLRD 138, the starting point for trafficking between 1,500 and 5,000 grammes of cocaine narcotic is 20 to 24 years’ imprisonment after trial. So the mathematical starting point for trafficking in 2,893.9 grammes of cocaine narcotic would be 21 years and 7 months’ imprisonment. The mathematical starting point is appropriate for persons at the lower bottom of the drug trafficking hierarchy such as a courier or a storekeeper.

In determining the appropriate starting point for this defendant, I would take into account his role and culpability. I accept that at the material time he was acting as a courier to bring the drug into Hong Kong as a drug mule. The fact that he was a drug mule being used in the international importation must be assessed as part of the role and culpability as the authority of Lee Ming Ho stated.

The international element applies to the sentencing of drug mules because they were fuelling the supply of drugs in Hong Kong and causing harm to individuals and the society here, regardless of the personal circumstances of the defendant. Moreover, drug mules who had already been found guilty or pleaded guilty knowingly trafficked in dangerous drugs across the border must have fully understood their acts and the consequences.

The Court of Appeal also said in the case of HKSAR v Raman Kapusamy [2024] 2 HLRD 955 that the international element is merely a factor or circumstance in the commission of the offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.

So, taking into account the overall role and culpability of this defendant including the international element, I consider that the appropriate starting point after trial should be 23½ years’ imprisonment.

I shall come to the mitigating factors. The really effective mitigating factor is his early plea of guilty which will entitle him to the full one-third discount of sentence. For that reason, his sentence is reduced to that of 15 years and 8 months’ imprisonment.

In respect of the defendant’s participation in Father John Wotherspoon’s anti-drug campaign, it lies within the sentencing judge’s discretion to allow a small additional discount for this factor but it should be no more than a token one because one must not forget that trafficking in dangerous drug is a crime of the utmost gravity. The court must balance the public interest in sentencing and must not be too lenient. In the case of HKSAR v Kilima [2018] 5 HKLRD 88, the Court of Appeal considered that 3 months is to be regarded as the maximum discount to be afforded for this factor.

In the case of HKSAR v Cherop Caroline [2021] 3 HKLRD 904, the Court of Appeal also said that sentencing judges must look at the letters prepared for this purpose and consider the substance of the letter as well as when and how they had been written, if the judges were to properly act on the letters in the exercise of their discretion. The Court also reiterated that a discount of up to 3 months represents the limit for taking part in Father John’s campaign and it is exceptional. Judges are perfectly entitled in the exercise of their discretion to give no discount for this factor at all.

Coming back to the present case. I am satisfied that the defendant had tried his best to give information about certain telephone numbers and contacts that he had, about the drug trafficking activities involved in this case, and his mother was also assisting Father John in his campaign by providing photographs to him. However, the fact remains that there was no useful arrest or seizure as a result and neither the defendant himself nor his family members were exposed to any risk of harm because of the information provided.

Having taken into account all the circumstances, I am prepared to exercise my discretion to give him a token discount of 2 months. So his sentence is reduced by a further 2 months and the ultimate sentence would be 15½ years’ imprisonment. That is the sentence that I will impose on this defendant.