On 1 January 2020, the accused was intercepted by officers of the Customs and Excise Service as he walked through the “nothing to declare” channel at the Hong Kong International Airport. He arrived in Hong Kong from Addis Ababa on Ethiopian Airlines.
The officers were attracted to the suitcase carried by the accused because an ion scan of the suitcase showed a positive reaction to cocaine. The accused was asked about the suitcase and admitted that it belonged to him. The suitcase was searched and four bottles of what appeared to be personal care products were found in the suitcase. The officers noted that they were extraordinarily heavy. The bottles contained a powder which was tested and proved positive to cocaine.
The powder was ultimately tested by the Government chemist, which resulted in a finding that there was 1,105 grammes of a powder containing 898 grammes of cocaine.
The estimated street value of the cocaine seized was something of the order of $1.23 million.
Two mobile phones and small amounts of different currencies were found in the possession of the accused.
The accused was interviewed under caution and made no answer in response to the caution.
On 4 January, the matter came before Mr Cheang Kei-hong, sitting as a permanent magistrate. The accused pleaded guilty to the charge of trafficking in dangerous drugs at the Hong Kong International Airport in the quantities that were in the Government Chemist’s Certificate. He admitted the facts contained in the committal bundle and he was committed to this court for sentence.
Personal circumstances and mitigation
The accused was born in Great Britain on 7 January 1976 and is 45 years of age. He has no previous convictions in Hong Kong. He is single and has a sister, aged 57. He came to live in Hong Kong following the receipt of an inheritance and he has lived here for some time. He went to Ethiopia with a girlfriend and was prevailed upon to carry the drugs, the subject of these proceedings.
Sentencing Principles
Sentencing for Trafficking in Cocaine
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. There are more serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help treat people who become addicted to this drug. There are consequences - sometimes serious ones - for the families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment of a maximum sentence of life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drug, the subject of the charge in this case.
Sentencing band
The source of the guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. Further, in Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. In that case, the Court of Appeal considered guidelines for cases such as the present one, where the quantity was greater than 600 grammes, which was the subject of the trafficking.
The applicable sentencing guidelines provide for a sentence in quantities between 600 grammes to 1,200 grammes of cocaine to attract a sentence, if the accused had been convicted after trial, of between 20 and 23 years.
Role of the Accused
It is critical to determine the role of the accused in the crime. That was held to be the case in relation to drug trafficking in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58–61, 64-68. In this case, the Court of Appeal recognised that although the analytical starting point in the sentencing guidelines for drugs such as cocaine start from the premise of sentencing for a courier or storekeeper, there is a range of culpability even if the trafficker can be, in a sense, characterised as courier. Court of Appeal held that an accurate characterisation of the role of the accused is critical because in appropriate cases, it would be open to the sentencing court to sentence above or below the mathematical application of the relevant guideline. Although the Court of Appeal recognised that in appropriate cases, it would be open to the sentencing court to sentence above or below the sentencing band, the Court of Appeal rejected the sentencing approach in trafficking cases where the sentence was based solely on narcotic content.
Discount for Plea of Guilty
The well-accepted principles of sentence recognise that where an accused person pleads guilty at the earliest practicable moment, a discount from the appropriate starting point of 33 per cent would be applicable.
Enhancement for Cross-border Trafficking
The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlies this is deterrence. The authorities which articulate this policy include HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, HKSAR v Abdallah (above) and HKSAR v Chung Ping Kun [2014] 6 HKC 106. In Chung Ping Kun, in paragraph 9, after an extensive review of the authorities, the Court of Appeal suggested that an enhancement where the drugs involved were between 500 grammes and 1,000 grammes would be between 1 year and 2 years.
Given it is now appropriate (see HKSAR v Henry Jane Yusuph) (above) to take account of the role of the accused, including the relative culpability of persons who are couriers across international borders, there is possibly a risk of an element of double counting in assessing sentence for international couriers. I use the phrase “an element” because I consider that in some respects of the sentencing policies which, on the one hand, underlined the assessment of the relative culpability of this kind of courier which brings drugs across international or intra-national borders, and on the other hand, the enhancement for taking drugs across such borders are not necessarily coextensive.
Application of Sentencing Principles
In the present case, on a purely arithmetical basis, a sentence of something in the order of 21 years and 6 months would be an appropriate starting point. However, I consider an appropriate starting point in the present case should be 22 years and 6 months. This is because I consider the carrier of dangerous drugs as a courier between another country and Hong Kong to be an act of substantial seriousness. I have done this based on my assessment of the role of the accused as a courier carrying dangerous drugs across international borders. My assessment is based on the premise that I am satisfied beyond reasonable doubt that, as a fact, had there been an enhancement from the mathematical starting point, that would have been about 1 year and would have produced about the same result.
I am satisfied beyond reasonable doubt the accused was a courier in that sense. There is no evidence upon which I could find so that I would be so satisfied that he was engaged in this as part of a criminal conspiracy. Although I regard it is highly likely that the accused was carrying the drugs across an international border and he must have appreciated there was some level of organisation which are underlay those activities. There is no evidence that the accused undertook his criminal activities for reward. Had I been so satisfied, the starting point for sentence would have been 23 years or something a little bit over.
In determining that the appropriate starting point is 22 years and 6 months, I have not made an additional enhancement for the cross-border element because I consider, on the specific facts of this case, that the policy considerations which will justify such an enhancement are already reflected in my finding as to the role of the accused. Specific to this accused, I would have regarded any such form of enhancement, as in any event, violating the totality of sentence considerations.
There are some forms of mitigation. I will reduce the sentence by an aggregate of 6 months because of the mitigating circumstances which suggest in essence a good man who has gone wrong, hopefully temporarily. I note his reconciliation with certain members of his family. He has also contributed to the community in the past. He has also contributed in a small way to Father Wotherspoon’s admirable programme within the prisons of Hong Kong. And for all of those acts and items of background, I have reduced his sentence by 6 months.
He is, of course, entitled to a discount of one-third of the sentence which would otherwise be appropriate.
Could the accused please stand up? Carrying dangerous drugs, particularly, a drug of such an addictive quality across an international border is, in my view, a very, very serious matter. It is serious also because of the quantity of such drug. The least sentence I can pass upon you is one of 14½ years, and that is the order of the court.