The particulars of the offence are that the defendant on or about the 1st day of March 2020 at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1.06 kilogrammes of a solid containing 804 grammes of cocaine.
He is committed to this court for sentence.
Facts admitted
On 1 March 2020, at about 2253 hours, Customs and Excise officers intercepted and searched the defendant who had travelled to Hong Kong from Sao Paulo, Brazil, at the Hong Kong International Airport. Nothing suspicious was found on the person and in the luggage of the defendant.
On x-ray examination in the North Lantau Hospital, foreign objects were found inside the body cavity of the defendant. Under arrest and caution, the defendant remained silent.
At about 0345 hours at Queen Elizabeth Hospital, the defendant discharged 12 pellets of dangerous drug which, on narcotic test, showed positive reaction to cocaine. Under reminded caution, the defendant remained silent.
At 0445 hours, 3 more pellets of dangerous drug showing similar result on narcotic tests were discharged by the defendant. Under reminded caution, the defendant remained silent.
From 0620 hours on 2 March 2020 to 0720 hours on 3 March 2020, the defendant further discharged 75 pellets of dangerous drug, making a total of 90 pellets which were confirmed to be 1.06 kilogrammes of a solid containing 804 grammes of cocaine.
The street value of the cocaine was $1,199,920.
At the time of arrest, the defendant had with him cash US$1,000, 253.55 Brazilian Reals, 4 Euros and 0.8 Suriname currency, 1 mobile phone with 2 SIM cards and a booking voucher of the Imperial Hotel in Hong Kong for the period of 1 March 2020 to 10 March 2020.
According to the immigration and flight record, the defendant travelled alone and arrived in Hong Kong at 2251 hours on 1 March 2020 as a visitor and had a return flight ticket of 10 March 2020 to Guarulhos via Addis Ababa.
Criminal Record
The defendant has a clear criminal record.
Mitigation
Counsel for the defendant, Ms Alva, has made a thorough and helpful mitigation on behalf of the defendant. The defendant is aged 25 and is a native of Brazil. He completed 2 years in secondary education and became a professional hairdresser after graduating from a hairdressing institute in 2018. He later went to work in a high-end hair salon in Suriname. He worked hard day and night, aiming to save money to open his own salon. He was unable to fulfil his dream after 6 years in Brazil and 2 years in Suriname and he was tempted and accepted the proposal of drug pushers to carry dangerous drug to Hong Kong for a reward of US$8,000. He had not yet received the reward when he was arrested in Hong Kong.
Ms Alva emphasises that the defendant is a person of previous good character and is seen by his family members as a good-hearted and hardworking person who is always ready to help others.
The defendant is extremely remorseful for what he has done and apologises to the people of Hong Kong. He is learning English and Chinese while in custody and is looking into the possibility of enrolling in a university course.
Ms Alva cites the cases of HKSAR v Chung Ping Kun [2014] 6 HKC 116 for the enhancement of sentence regarding the international element involved in this case, submitting that the enhancement should be between 1 and 2 years. She further cites the case of HKSAR v Fong Yau Heung, CACC 173/2020, in which leave was given for the issue of enhancement of sentence for the reason of international element in drug trafficking cases to be argued in a full court of the Court of Appeal.
Ms Alva asks the court to take into consideration the NPS given by the defendant to the authorities despite no results being produced. Ms Alva also urges the court to give discount of sentence to the defendant for the assistance he has given to the campaign of Father John Wotherspoon.
She submits to court a mitigation letter written by the defendant. The defendant expresses remorsefulness in the letter and his determination to turn a new leaf. He says that he will continue to study and will make his best efforts to set up his own business so that his family will be proud of him.
Sentence
According to the case of AG v Rojas [1994] 1 HKC 342 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for trafficking in 600 to 1,200 grammes of cocaine is 20 to 23 years imprisonment. The amount of cocaine involved in the present case is 804 grammes which carries a basic starting point of approximately 21 years imprisonment which the court adopts.
The defendant committed the offence for economic reasons. This, of course, cannot be used as an excuse to offend the law and is certainly not a mitigating factor. In an offence of such a serious and abominable nature, the good background of the defendant does not help him in his mitigation.
The defendant has tried to assist the authorities by giving an NPS. Although the efforts have borne no fruits, what the defendant has done is to be encouraged and some discount in sentence will be given in this regard.
Taking into consideration also of the assistance of the defendant given to the campaign of Father John, the court reduces the starting point to 20 years imprisonment.
There is an aggravating factor in the present case in that the defendant carried the dangerous drug into Hong Kong from another country. Having considered the authority of Chung Ping Kun which is still binding on this court, the court is of the view that an enhancement of 1 year 9 months in the starting point is appropriate. The court therefore adopts an ultimate starting point of 21 years 9 months imprisonment. Giving credit to the defendant for his plea of guilty, the court sentences him to 14 years 6 months imprisonment.
Of course, should the Court of Appeal adopt a different view regarding the enhancement of sentence by reason of international element in drug trafficking cases in the case of Fong Yau Heung, the defendant, if necessary, can lodge an appeal against sentence to the Court of Appeal.