On 6 April 2020, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He was committed to the Court Of First Instance for sentence. This morning, the defendant confirmed before me his plea and his acceptance of the Summary of Facts.
Briefly, on 27 December 2018, the defendant was intercepted by the customs officers for examination after he had landed at the Hong Kong International Airport from Johannesburg, South Africa. Although no contraband was found on the defendant’s person at that time, as he was suspected to have internal concealment of dangerous drugs, he was escorted to the hospital for medical examination upon which it was confirmed that there were foreign objects inside his body. Subsequently, the defendant discharged a total of 84 pellets which contained the drugs particularized in the charge, that is, 969 grammes of a solid containing 779 grammes of cocaine.
During the interview conducted with the defendant, he claimed that he was asked to swallow some medicine in the form of pellets and to bring them to Hong Kong for a reward of USD$7,000. Of course, the defendant now admits that he knowingly possessed the drugs in question for the purpose of trafficking. The estimated street value of the drugs was about HK$1 million.
The Defendant’s Background and Mitigation
The defendant was born in Mozambique and is a holder of Mozambican passport. He is now aged 42 and has not offended in Hong Kong before. According to the documents submitted to the court by Mr Bullett on behalf of the defendant, the defendant also has a clear record in his home country. The defendant finished pre-university courses. He is married, with a son now aged 10. Prior to the commission of the present offence, Mr Bullett told the court that the defendant conducted market trading in hair products.
In mitigation, Mr Bullett repeated that the defendant was approached by a person named John shortly before he came to Hong Kong. John asked him to take some pellets to Hong Kong. The defendant, according to Mr Bullett, initially refused but later accepted the proposal because of apprehension to his family. However, when asked whether he was suggesting that there was duress in the legal sense, Mr Bullett answered in the negative and said he was simply submitting that the act of taking the drugs to Hong Kong was an act out of character. Mr Bullett further confirmed that, of course, when the defendant swallowed those pellets, he knew full well that those were drugs and he was taking them to Hong Kong.
Further, Mr Bullett submitted to the court letters written by the defendant’s son and his wife as well as a letter together with documents attached to that letter written by Father Wotherspoon who informed that the defendant had helped in his “No More Mules” anti-drugs campaign. The letter attached to Father Wotherspoon’s letter was from a sergeant of the South African Organized Crime Bureau in which the sergeant said that he had finished an interview where the name O.O. was mentioned and that follow-up investigation would be conducted.
In respect of the defendant’s statement posted in Father Wotherspoon’s campaign website, I note that the defendant said in his statement that:
“He also told me that he had something to send to his brother in Hong Kong and would then use the opportunity I was coming to Hong Kong and send it with me. Of course, now I know that he intended to use me as a mule to carry drugs to Hong Kong, and today I am in prison here.”
This statement seems to suggest that the defendant was deceived into taking the drugs to Hong Kong.
Now, in relation to the alleged assistance offered by the defendant, Mr Bullett mentioned that the defendant has given a non-prejudicial statement to the customs authority here but Mr Bullett did not consider it necessary for the court to read that statement because, basically, the defendant just gave a name John. Ms Chit for the prosecution also confirmed that the NPS was of no use. When asked whether that name John has anything to do with the name O.O. in Father Wotherspoon’s letter, Mr Bullett suggested that they might turn out to be the same person. However, Mr Bullett frankly admitted that he was not relying on this as mitigation and that in the present case, the defendant’s greatest mitigation was his guilty plea.
In the course of mitigation, Mr Bullett urged this court to give an additional discount to the defendant for his assistance in the campaign, that is, in Father Wotherspoon’s campaign. At that time, I told Mr Bullett that I was not inclined to do so because the defendant apparently did not come clean in his statement posted in the campaign website. At that juncture, Father Wotherspoon, who was sitting in court, raised his hand. Therefore, I told Mr Bullett that I would rise so that he could take further instructions or obtain further information before he continued with his mitigation.
Upon resumption of the hearing, Mr Bullett related that there is no requirement that the ones giving statements in the campaign website have to give precisely accurate statements or details. The letters are there to warn the mules and sometimes names are not given at all. Therefore, it was suggested that the details are not important as long as the defendants offer assistance and that, in this case, Mr Bullett again emphasized the defendant’s guilty plea. Mr Bullett thus asked this court to re-consider the question of giving an additional discount based on the defendant’s participation in the campaign.
Sentencing Considerations and the Sentence
The tariffs for trafficking in cocaine are the same as those laid down for heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 600 and 1,200 grammes of cocaine, the sentence is a term of imprisonment of between 20 to 23 years.
The drugs involved in this case were a total of 779 grammes of cocaine. Such was a large quantity and this is a very serious offence. Having considered the facts and all the relevant circumstances, I take the view that a starting point of 21 years is appropriate. Moreover, as the defendant took the drugs into Hong Kong, there was an international element in this trafficking activity which aggravates the offence.
In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal stated that an enhancement of 1 to 2 years would be appropriate for the international element in the trafficking of between 500 and 1,000 grammes of cocaine. I consider that, in the present case, an enhancement of 1½ years is appropriate. Therefore, the overall starting point after the enhancement is one of 22½ years.
The defendant pleaded guilty at the first available opportunity and maintained his plea throughout, I would give him a full one-third reduction for his plea. As to his personal background, including his clear record here in Hong Kong and in his home country, while the court is sympathetic towards his family in the plight the family is now in, that is something which the defendant should have thought about before committing the present offence. Such personal circumstances do not constitute any powerful mitigation warranting a further reduction of sentence in this serious type of drug trafficking cases.
Now, in respect of the defendant’s participation in Father Wotherspoon’s campaign, I should reiterate McWalters JA’s observation in HKSAR v Crispo Vida Mijide [2019] HKCA 741 at paragraph 36, in respect of the applicant’s first complaint, that is, the judge erred in not giving her a further reduction of her sentence for her participation in Father Wotherspoon’s campaign:
“...it is true that the Court of Appeal did say in its judgment in Kilima Abubakar Abbas that the sentencing judge has a discretion to allow a ‘token discount’ of a maximum of three months for post-sentence participation in Father Wotherspoon’s campaign, but it also adhered to its previously expressed view that this is a matter that the Executive is better equipped to perform. It is not reasonably arguable, therefore, that the judge erred in adopting the stance she did.”
In the present case, I understand Father Wotherspoon’s position is that whoever comes forward to help in the campaign, that would be welcome and it matters not that much whether one is telling the truth or the whole truth in the statement posted in the campaign website. However, it being a discretion to allow a further reduction in sentence based on the participation, having considered all the relevant circumstances, I do not take the view that it is appropriate to exercise my discretion in the present case to order a further reduction to take account of the defendant’s participation in the campaign. While it may be true that one does not need to be precisely accurate in the account given in the statement posted in the website, it would appear to me that if one comes clean there, it would certainly be more useful and helpful to warn others not to follow the same path. There is, in my view, also the question of sincerity in helping to promote the campaign if one just tells half-truths or untruths in his statement. Therefore, after taking into account all relevant matters, I am not going to give any additional discount in relation to the defendant’s participation in the campaign.
22½ years reduced by one-third is 15 years’ imprisonment. This is the term I impose on the defendant in respect of the charge to which he pleaded guilty.