The accused was intercepted by officers of the Customs and Excise Service who sought to x-ray the large backpack. In the large backpack which the accused acknowledged belonged to him, the officers found four packets containing a total of 2,770 grammes of a solid containing 2,083 grammes of cocaine in the false compartment of the backpack.
The accused was arrested and cautioned in English. Under caution, he said that he understood.
His mobile phone was checked and the messages found on that phone were consistent with him being knowingly engaged in international drug trafficking.
The estimated street value of the cocaine that was seized was of something of the order of HK$3.1 million.
Procedural history
The accused was put up before a magistrate on a charge of trafficking in cocaine. In the result, the accused came before Mr Tang Siu-hung, Daniel, sitting as a permanent magistrate in the Eastern Magistracy. On 16 February 2021, the accused pleaded guilty before the learned magistrate and admitted the Summary of Facts which appears in the file. He was committed to this court for sentence.
In this court, he has confirmed his plea and confirmed his admission of the facts. He is, accordingly, convicted.
Background and Mitigation
The accused is a citizen of Thailand. He has no previous convictions in Hong Kong. He was educated to Form 3 secondary level. Prior to his arrest he was working as a massager. He lived with his parents and a younger sister. He has the AIDS infection.
I am told by Ms Chong that he came to Hong Kong to earn money by his trafficking to repay loan sharks and to get some money for his own business.
Sentencing Principles
Seriousness of 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 very 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 also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. 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 for 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 the 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 drugs, the subject of the charge in this case.
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 and Others [1990] 2 HKLR 370. 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 and Others (above) were appropriate for cocaine. The correctness of the guidelines in relation to cocaine were confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines provide for a sentence for quantities between 1.2 and 4 kilogrammes is a sentence of between 23 years and 26 years’ imprisonment if the person was convicted after trial.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that 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 underlines this is also 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 HKSAR v Chung Ping Kun at paragraph 9, after an extensive review of the authorities, the Court of Appeal suggested that an appropriate enhancement where the drugs involved were between 500 grammes and 1,000 grammes would be somewhere between 1 year and 2 years.
Role of the Accused
The accused’s role is that of a courier carrying drugs across an international boundary. In my judgment, this is the worst form of courier activity. In this regard, in HKSAR v Herry Jane Yusuph CACC 93/2019, [2020] HKCA 794 at paragraph 49, the Court of Appeal observed:
“It is here we should make an important point that simply because the guidelines in various trafficking cases are devised for those at the bottom of the trafficking hierarchy, namely, couriers and storekeepers, it does not mean that once one of those labels can be applied to the actions of a defendant, there is no discretion to go above or below the arithmetically determined starting point.”
In this regard, the Court of Appeal in HKSAR v Herry Jane Yusuph (above) rejected the proposition that once the label “courier” is to be attached to the conduct of a person to be sentenced for trafficking in dangerous drugs that this is the end of the discussion. Specifically, the Court of Appeal rejected the analysis in HKSAR v Manalo [2001] 1 HKLRD 557 which suggested what the court characterised as a “discretionless starting point based on the quantity of a dangerous drug alone”. In Yusuph, the Court of Appeal concluded:
“The danger of such a discretionless approach is that it makes the same erroneous assumption as Stuart-Moore ACJHC made in Manalo, that there is a precise arithmetical starting point for anyone who comes within the general description of ‘courier’ or ‘storekeeper’.”
The court went on to say there is reposed in the sentence are a discretion to assess the role and culpability of the accused in deciding where in the applicable sentencing band or, possibly, outside that band lies the accused’s conduct.
Clearly, there is a wide range of conduct by a person who can be labelled as a courier. In the present case, there is no mere brief journey from one housing estate to another housing estate or from the post office to home. The conduct of the accused was to bring the cocaine from Malaysia to Hong Kong in a deliberate and orchestrated arrangement for that cocaine to end up in the hands of a confederate in Hong Kong. The accused did what he did for reward. In my judgment, within the range of conduct that might be characterised as a courier, this must rank as conduct at the more serious end of that.
In my opinion, the simple mathematical application of the sentencing guidelines applicable to this court of the cocaine would not recognise the role of the accused. This is trafficking across international borders and it seems to me that assessing the role of the accused in that fashion would put the starting point at something of the order of 24.5 years. That would work out as approximately the same as the enhancement for cross-border trafficking recognised in the authorities that I have earlier referred to. In the result, I have chosen not to add an enhancement for crossing international borders with the drugs: that is taken care of by the assessment of the role of the accused. To enhance in addition would raise totality issues.
Application of Sentencing Principles
There is a terrible inevitability about the kind of sentence which must be imposed on this man who is affected by HIV and has chosen to carry this large quantity of drugs to Hong Kong. The saving grace is, perhaps, that this quantity of drugs has been diverted from the market into the hands of the authorities and that is plainly a good thing.
The accused, please stand up. Would the accused please stand up? Applying the discount to which the accused is entitled of 33 per cent, the sentence which must be passed is a sentence of 16 years and 4 months and that is the order of the court.