The particulars of offence are that the defendant, on the 9th day of March 2020 at Customs Arrival Hall A, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 427 grammes of a solid containing 273 grammes of cocaine.
She is committed to this court for sentence.
Facts Admitted
On 9 March 2020 at about 2105 hours, the defendant who had arrived in Hong Kong from Dubai, was selected for Customs clearance by the Hong Kong Customs and Excise Officers. The defendant was found wearing 2 pairs of panties and a packet wrapped in condom material was found protruding from her vagina.
Inside the packet, there was a solid of 427 grammes in weight containing 273 grammes of cocaine with a retail value of $483,364.
The defendant had cash US$1,001 and Guinean Franc 3,000 units, which was equivalent to about HK$2, and 2 mobile telephones with her.
The defendant was arrested and cautioned.
In the video-recorded interview under caution subsequently conducted, the defendant admitted, inter alia, that she was from Thailand, and due to financial problems, she had worked for a person named ‘Baby’ to bring the cocaine to Hong Kong for a reward of about HK$37,100.
In the hotel in Guinea, the packet of cocaine was given to her by an unknown man. The man told her it was 450 grammes of cocaine. She put the packet of cocaine inside her vagina herself, but it was too long to be put inside completely so she wore 2 pairs of panties to cover the protruding part. She was to pass the stuff to a person she was going to meet at the Hong Kong airport. All the flights and hotels were arranged by Baby.
The defendant gave the telephone number of Baby and the unknown man to the authorities. She also showed the photographs of the unknown man in her mobile telephone to the officers of Customs and Excise. The WhatsApp messages, the Facebook record and the photographs found in the mobile telephones of the defendant confirmed the story she gave in the video-recorded interview.
Criminal Record
The defendant has a clear criminal record in Hong Kong.
Mitigation
The counsel for the defendant, Ms Crebbin, has tried her very best to mitigate on behalf of the defendant and has made a very thorough submission, although regrettably, much of what she has told the court does not amount to valid grounds of mitigation.
The defendant is aged 44, a widow with a daughter and 2 sons. The daughter is aged 23 and is married. The sons are aged 18 and 12 and they are now being looked after by their elder sister and brother-in-law. The husband of the defendant who was the main bread winner of the family, died in 2010. The family fell into financial troubles and the defendant had to go around the country to work in the trade of massage.
As the income of the family seafood business was not sufficient to cover the medical expenses in the treatment of the cancer of the sister-in-law and the heart problem of the mother of the defendant, the family ran into substantial debts. The sister-in-law of the defendant died when the defendant is in custody in Hong Kong.
In 2020, the defendant, in order to earn quick money to repay the debts, was lured to bring dangerous drugs to Hong Kong for a Nigerian male named ‘Baby’ who lived in Thailand. The defendant is now extremely remorseful. She apologises to the court and the Hong Kong people.
Ms Crebbin says that the defendant has a difficult life in the prison because she cannot communicate with the inmates there and her family are unable to come to Hong Kong to visit her.
For the international element involved in the present case, Ms Crebbin is of the view that the enhancement in sentence should be in the region of 6 to 9 months imprisonment. She emphasises that the defendant has a clear record and was only a courier and was not the mastermind of the syndicate.
Ms Crebbin submits the letters of the defendant and Father John Wotherspoon. The defendant expresses remorsefulness in her letter in which she also sets out the reasons for committing the offence, which are in line with the information given in the mitigation by Ms Crebbin. She also gives some details about her life in the prison and her reflection of the mistake she had committed. She asks for the mercy of the court.
Father John states in the letter that the defendant had made much contribution in his campaign to stop people to bring dangerous drugs into Hong Kong.
Ms Crebbin points out that the defendant was cooperative with the Hong Kong authorities and had provided much assistance to them which are described by the authorities as “of potential practical use”.
Ms Crebbin refers the court to a number of authorities, including HKSAR v Abbas [2018] 5 HKLRD 88, HKSAR v Lo Sze Tung, Stephanie [2019] 1 HKC 309 and HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 regarding the sentencing and discounts to be given in cases of trafficking in dangerous drugs. Ms Crebbin urges the court to give a discount of at least 40 per cent to the defendant.
Sentence
According to the sentencing guidelines laid down in AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming & Ors [1990] 2 HKLR 370, the starting point for trafficking in 200 to 400 grammes of cocaine is 12 to 15 years imprisonment. The amount of cocaine involved in this case is 273 grammes and the starting point, in accordance with the sentencing guidelines, is approximately 13 years 1 month imprisonment.
The defendant committed the offence for economic reasons. This, of course, cannot constitute a valid ground of mitigation. Although, as rightly pointed out by Ms Crebbin, the sentencing guidelines are not straitjacket, the court has a duty to pass consistent sentences in cases of similar nature.
The court agrees that, as pointed out in the case of Yusuph, consistency does not mean identical sentences. The court is of the view that it is important that uniform sentences are to be passed in similar cases so as to avoid grievances which some defendants may feel when inconsistent sentences are passed. The court therefore adopts 13 years 1 month imprisonment, as the basic starting point.
There is an aggravating factor in the present case in that the defendant had brought the dangerous drug into Hong Kong from Dubai. For this reason, the court enhances the starting point to 13 years 5 months imprisonment.
The defendant was cooperative with, and had offered assistance to, the Hong Kong authorities. Although no results have been produced, what the defendant had done is to be encouraged and the court is prepared to accord the defendant some discount in sentence in this regard. The court adopts a starting point of 13 years imprisonment.
For the assistance the defendant has given to the campaign of Father John, the court reduces 3 months from the starting point.
Giving credit to the defendant for her plea of guilty, the court sentences her to 8 years 6 months imprisonment.