COURT: The defendant is charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in respect of 3,211 grammes of a mixture containing 2,734 grammes of heroin hydrochloride. She pleaded guilty to this offence at the first opportunity in the magistracy and was committed to the Court of First Instance for sentence. At the time of her plea she also admitted the truth of a Summary of Facts which set out the circumstances of the offence. Before me, she confirmed both her plea and her admission of that Summary of Facts.
The Summary of Facts reveal that on 9 March 2020 at around 10.16 pm, the defendant was intercepted for inspection at Customs Arrival Hall A, Passenger Terminal 1, Hong Kong International Airport. The defendant was carrying a purple suitcase and other luggage. X-ray screening of her luggage was performed by a customs officer who found that the images were abnormal and so the defendant was directed to another counter for further customs clearance.
Upon opening the purple suitcase, the customs officer found 12 containers of instant cup noodles and after unwrapping the packaging of one of these containers, he found some white powder inside it. This white powder was later confirmed to be the quantity of heroin hydrochloride that is particularised in the charge.
The defendant was arrested and cautioned and under caution, she stated that the containers of instant cup noodles belonged to a person called ‘Hung Chai’ who had instructed her to go to Kuala Lumpur to bring the noodles back to Hong Kong. She said she was given the noodles at a hotel in Kuala Lumpur by an unknown man with instructions from Hung Chai to call him after she had returned to Hong Kong. She was promised that she would receive several thousand dollars as a financial reward but she had not yet received any money.
She indicated her willingness to participate in a controlled delivery operation and consented to the Customs officers viewing and using her mobile phone for the purpose of this operation.
In order to conduct the controlled delivery operation, the defendant called Hung Chai several times but no one answered the call. Eventually the operation was terminated.
Subsequently, the defendant participated in a further cautioned video record of interview in which she provided more detail of her recruitment by Hung Chai and of the reward she could expect to receive. She said she travelled to Kuala Lumpur as part of a package tour that cost Hung Chai $7,100 and was to last from 5 to 9 March 2020. She said that the reward that she expected to receive from Hung Chai for transporting the containers of noodles back to Hong Kong was $5,000.
She said she had become acquainted with Hung Chai via a recruitment post on Facebook in December 2019. She had never met him in person and only contacted him via WhatsApp and phone calls. The person who gave her the cup noodles in Kuala Lumpur was a friend of Hung Chai and when she received them on 8 March 2020, she placed them in the suitcase. She admitted that they were heavier when compared to the weight of a normal container of cup noodles.
The defendant said that this was the first time that she had brought some goods back to Hong Kong from overseas for another person.
The street value of the heroin seized was around $2,549,534.
The Summary of Facts concluded with the defendant admitting that she knowingly imported the seized heroin into Hong Kong.
The defendant is represented by Mr Yeung Shek-nung who informs me that the defendant is aged 54, is locally born, and educated up to Form 3 level. She was married but is now divorced and the marriage produced three children who are all now adult and living away from home. The three children are a 30-year-old daughter, a 26-year-old son, and a 24-year-old son. The last born son is mentally retarded and living in an institution. The second child is unemployed and the daughter is working in the catering field.
The defendant was working as a cashier earning $10,000 per month but was laid off in mid-February 2020 owing to the pandemic. She has been in financial difficulties since that time. Although, that being said, she was living with a boyfriend at the time she participated in this crime. She was lured into committing the offence by the offer of a subsidised holiday and the promise of $5,000. She was anxious to reduce the financial burden that her boyfriend was enduring. She knew she was carrying dangerous drugs but she did not know their exact nature.
Her ex-husband has written a letter to the court on her behalf. He describes the difficulties his ex-wife faced in looking after their mentally retarded son as he grew up. He describes her as a woman who is not bad in her nature and he attributes her committing this crime to her qualities of being “too honest and credulous without much calculation”. He asked for leniency for her.
Her counsel, Mr Yeung, urges me to find that she committed this offence out of sheer folly and that there is very little, if none at all, risk of recidivism. I accept those submissions.
The law relating to the sentencing of drug trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. In that judgment Macrae VP, in giving the judgment of the court, set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment.
There was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve a reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straightjackets by sentencers and did cater for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment.
The first step is to identify the relevant guideline band applicable to the quantity of dangerous drug concerned. In respect of the quantity of heroin in which the defendant trafficked, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. This case lays down a sentencing band of 23 to 26 years’ imprisonment for quantities of 1,200 grammes to 4,000 grammes of heroin narcotic.
The second step is to assess the defendant’s role and the culpability based upon the evidence. It is not disputed that the defendant’s role was that of an international courier transporting drugs from another country to Hong Kong. There is nothing in the evidence placed before me to distinguish this defendant from other couriers performing similar duties of importing drugs into Hong Kong for those involved at a more senior level in the drug trade. There is no evidence that she was actually dealing in dangerous drugs and her involvement in the drug trade is confined to that of a low level courier merely following the instructions of those employing her. I assess her culpability and role at the same level as any other low level courier.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant.
In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors.
The assessment made in the second step is also relevant to determining where within the band, or outside the band, the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
In respect of this defendant, trafficking in 2,734 grammes of heroin, a mathematically calculated place within the 1,000 to 4,000 grammes of narcotic band of 23 to 26 years’ imprisonment would be 24 years and 7 months’ imprisonment. Taking into account my assessment of the defendant’s role and culpability and the weight of the heroin narcotic in which she trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 24 years 7 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance the starting point. It is not disputed that I am bound by the Court of Appeal authority in the Abdallah judgment to enhance the defendant’s starting point to allow for the presence of the aggravating factor that she was trafficking the heroin across an immigration border. For this so-called international element, in respect of this quantity of heroin narcotic, the appropriate enhancement is 2 years’ imprisonment. This results in a notional sentence after trial of 26 years 7 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. The one-third discount which an offender receives for his timely plea of guilty will generally encompass the bulk of the mitigating factors available to a defendant such as prior good character, remorse, and impecuniosity as a motivation for the offence.
This defendant is entitled to a one-third discount for her timely plea of guilty. In addition to pleading guilty the defendant has, from the very moment of her arrest, unhesitatingly assisted the Customs officers in the investigation of this offence. She named the person who was employing her as a courier and tried to assist the Customs and Excise Department with a controlled delivery. For her assistance to law enforcement, she is entitled to an additional small discount. The total discount which I shall give her is 38 per cent. This produces a figure of 15 years and 3 months.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, just, and balanced in all the circumstances of the offence and the offender. This may be more relevant to cases involving multiple offences but in my view the Court of Appeal was not limiting the six steps to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and, ultimately, just.
In this respect, I note that the defendant is 54 years of age and has lived a life that has essentially been free of any breaches of the criminal law. A sentence as long as 15 years and 3 months will mean that even if she receives a further discount from the Commissioner of the Correctional Services for good behaviour while serving her sentence, she will still not be discharged from custody until she is well into her 60s. Yet, she is at no risk of being a repeat offender. She has behaved foolishly and must now pay the price for that foolishness. She is in no need of personal deterrence. What she needs, so far as this court can give it, is compassion and leniency.
I bear in mind also that her son, who is mentally retarded, will be deprived of her company and loving attention. I am satisfied that these circumstances justify me reducing the final sentence so that it is not a crushing one.
I sentence the defendant to 14 years and 3 months’ imprisonment.
ACCUSED: Yes, I do.
COURT: Yes, I do apologise for the mistake and for leading you to think that you would get a sentence even less than that. I think I set out very clearly in my reasons for sentence how I came to that final conclusion but, unfortunately, mathematics led me astray. I do apologise for that.