The accused submitted to a search by officers of the Customs and Excise Service when she presented for clearance and inspection. Initially, nothing was found but at 8.05 pm on 18 April, she was put to a personal search room for a body search. Initially, officers found suspected dangerous drugs in a condom. The condom was protruding from her vagina. She was arrested and cautioned, and she made admissions. I will return to the admissions in a moment.
The accused was then taken to North Lantau Hospital. Medical examination showed there were foreign objects inside the body of the accused. She was once again arrested and cautioned and made admissions. Again, I will return to those admissions in a moment.
She was taken then to Queen Elizabeth Hospital for follow-up. Between 18 April and 20 April 2019, whilst at Queen Elizabeth Hospital, she discharged a total of 25 packets from her body.
The packets that she discharged at Queen Elizabeth Hospital together with the material in the condom found in her vagina were examined by the government chemist, and he certified that they contained a total of 494 grammes of a solid containing 297 grammes of cocaine.
As indicated earlier, the accused made admissions. The essence of the admissions that she made was that she admitted carrying the objects found in her to Hong Kong. She told the Customs and Excise Service officers that she would give those objects to somebody in Hong Kong and would be rewarded for these. She said she was unaware of what the reward would be. The objects had been given to her by a man in Nigeria and she was to deliver them to another man in Hong Kong.
She submitted to a further interview under caution and told the interviewing officers:
(1) she was married and lived in Lagos in Nigeria;
(2) she was a trader with no fixed income;
(3) her husband was ill and she was in financial difficulty;
(4) the packages containing the drugs were given to her by a man in Nigeria;
(5) she was instructed to conceal the packages containing the drugs; and
(6) at the time of her arrival, she did not know how to contact the man who would take the drugs from her. She suspected that somebody would contact her when she checked in at the hotel.
It is admitted that the street value of the cocaine at the time of the seizure in question was just under $542,000.
At the time of her arrest, she was in possession of two mobile phones, a travel itinerary, a transaction receipt and just over US$3,000.
Procedural History
The accused was brought before a magistrate on 22 April 2019. On 27 July 2020, before Mr Cheang Kei-hong, sitting as a permanent magistrate in the Eastern Magistracy, the accused was committed for sentence to this court, having pleaded guilty before that magistrate and admitted the set of facts, the essence of which were outlined a moment ago.
Background and Mitigation
The accused was born in Nigeria. She is 39 years of age and is married with six children ranging from 23 to 4 years old. She lived in Nigeria with her family. Her parents have died. Indeed, sadly, her mother died after she was arrested in Hong Kong. She is a university graduate. Since 2015, she was a trader. The husband of the accused became sick and has, as presently advised, an unidentified and undiagnosed illness which has been the substantial cause of her financial difficulties. The accused has been the sole breadwinner of her family since 2016. She borrowed money to support the family and, in particular, to pay for the education of her children.
She is a person of previous good character, having no previous convictions in either Nigeria or Hong Kong. Counsel for the accused, Mr James Sherry, leading Ms Charmine Cheung, submit, and I accept that, prior to the conduct, the subject of the present charge, she never had anything to do with drugs or with persons connected with them. She is remorseful for her conduct.
The accused has been an active participant in the campaign co-ordinated by Father Wotherspoon. This is confirmed in a letter from Father Wotherspoon dated 10 January 2021. In particular, her story has been widely circulated in Nigeria and more generally in west Africa. To that end, the story has been rendered into the French language as well. I am told that her assistance to this campaign continues. Any step that contributes to the reduction of drug trafficking from west Africa to Hong Kong must be positively encouraged. The force of this might well be underlined by the fact that the Customs and Excise Service was reported in the South China Morning Post published on 30 January 2021 saying the 2020 seizures by the Customs and Excise Service were the largest since records began. While it would be appropriate to offer congratulations for making such seizures, the fact that it was a record emphasises the necessity for counter-measures outside the strict aegis of law enforcement.
In mitigation, counsel for the accused described the accused as a person who was taken advantage of because of her financial straits. While, as he says, she was originally a person who wanted nothing to do with drugs or drug traffickers, she was pressured and cajoled into carrying drugs into Hong Kong. The persuasion was, so counsel maintained, wrapped up in the promise of business opportunities to improve her trading business in Nigeria. In his submissions, counsel for the accused said that the accused “says that although she knew she was doing something wrong, without understanding the penalty, she decided to take the risk, a risk that she now very much regrets”.
The accused has provided substantial assistance to the Customs and Excise Service in the form of what is known as a non-prejudicial statement. The content of the assistance has been carefully assessed. Independent assessment of an officer of that service is that the assistance provided was of “potential practical use”. It is accepted by the prosecution that she has done everything she can to assist the authorities. That assistance is, apparently, in the nature of information which may be used for further investigations and it is characterised as detailed. I am informed by counsel for the accused that the accused stands ready to testify in the event that aspects of her non-prejudicial statement come to what I might call fruition. I accept that submission.
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. However, 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 that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is 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 this case.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & 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 the guidelines in Lau Tak Ming & Others (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 2 HKLRD 437.
The applicable sentencing guidelines provide for a sentence for quantities between 200 grammes and 400 grammes of cocaine to attract a sentence, if the accused has been convicted after trial, of between 12 and 15 years.
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 and HKSAR v Abdallah (above) and also HKSAR v Chung Ping Kun [2014] 6 HKC 106. In Chung Ping Kun, 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 between 1 year and 2 years.
Discount of 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 for the appropriate starting point of 33 per cent would be applicable.
Role of the Accused
The role of the accused is that of a courier for a reward. She placed some of the drugs, the subject of the charge, in her vagina and swallowed another quantity and expelled those while in hospital. In this regard, in HKSAR v Herry Jane Yusuph CACC 93/2019, [2020] HKCA 794, §49, the Court of Appeal observed in relation to persons in the position of the accused:
“It is here that we should make an important point that simply because the guidelines in various drug-trafficking cases are devised for those at the bottom of the trafficking hierarchy, namely, couriers and storekeepers, it does not mean that once those labels can be applied to the actions of the defendant, there is no discretion to go above or below the arithmetically determined starting point.”
In this regard, the Court of Appeal in Herry Jane Yusuph (above) rejected the proposition that once the label “courier” is to be attached to the conduct of the person to be sentenced for trafficking in dangerous drugs that this is the end of the discussions. Specifically, the Court of Appeal rejected the analysis in HKSAR v Manalo [2001] 1 HKLRD 557 which had suggested that the court characterised their “discretionless starting point based on the quantity of dangerous drugs alone”. In Herry Jane Yusuph (above), the Court of Appeal concluded:
“The danger of such a discretionless approach is that it makes the same erroneous assumption as Stuart-Moore Acting. CJHC, 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 that there is reposed in the sentence are a discretion to assess the role and the culpability of the accused in deciding where in the applicable sentencing band or, whether the person lies outside such a band.
Clearly, there is a wide range of conduct by a person who can be labelled as a courier. In the present case, this is no brief journey from one housing estate to another or from the post office to home. The conduct of the accused was to bring the cocaine from Nigeria via Ethiopia to Hong Kong in a deliberate and orchestrated arrangement to end up in the hands of a confederate in Hong Kong. In my judgment, within the range of conduct which might be characterised as a courier, this must rank as conduct at the more serious end of that.
Assistance to Authorities
The principles are long standing. In Z v HKSAR [2007] 10 HKCFAR 183, the Court of Final Appeal restated those principles for Hong Kong and held: ((2007) 10 HKCFAR 183, §1)
“It is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and usually to give an appropriate reduction from the sentence which the defendant would otherwise have received. The assistance is most often given by the defendant after his arrest for the offence for which he is being sentenced (post-arrest assistance)”
Li CJ continued: ((2007) 10 HKCFAR 183, §10-11)
“10. The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society's fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.
11. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts' approach in this regard is a pragmatic one.”
The Court of Final Appeal in that case recognised that there might be a range of assistance depending on the variety of factors and recognised as a consequence of that that there would be a wide range of potential reductions of sentence to mark that assistance.
In recent times, the Court of Appeal has considered the practical application of the policy articulated in the Court of Final Appeal in Z v HKSAR (above). In HKSAR v Lo Sze Tung Stephanie CACC 190/2017, in that case of the Court of Appeal (Justices Macrae VP and McWalters JA) concentrated on problematic aspects of the application of the policy. In relation to potential reductions in the range of 33 to 40 per cent, McWalters JA giving the judgment of the court observed:(CACC 190/2017, §48-49)
“48. This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.
49. This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”
McWalters JA then considered the discount range of 40%-50%. In this regard he observed:(CACC 190/2017, §53)
“53. This range includes acts of assistance that do not involve testifying for the prosecution. The defendant may not end up testifying for the prosecution either because he elects not to do so or because, due to circumstances beyond his control, there is no need or opportunity for him to do so. Thus, it encompasses cases where the nature and extent of the assistance rendered by a defendant acting only as an informant, with no risk of harm to himself, are considerable. But there is also a category of cases commonly encountered in this range that is relevant to this applicant and it is where a defendant agrees to testify for the prosecution but is prevented from fulfilling his promise because the offender pleaded guilty.”
The matters were further considered by the Court of Appeal in HKSAR v Cheng Weiguang [2018] HKCA 274. In that case, Court of Appeal (Yeung Acting CJHC and Pang JA) observed:([2018] HKCA 274, §15)
“15. In our view, if an offender who pleads guilty and also assists the law enforcement authority, including providing useful crime information and being willing to testify in court, for the purpose of bringing other offenders to justice, is not required to testify in court eventually because of certain reasons and hence does not need to face the hardship in giving evidence in court, then he should be given a discount of 40% to 45% in sentence. Within such range, the judge dealing with the case has the discretion to give an appropriate discount in sentence as he sees fit depending on the circumstances of individual cases.”
More recently, in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, the Court of Appeal (Justices Macrae VP and McWalters and Zervos JJA) reviewed the position as to the appropriate discounts and the criteria for providing such discounts, and they observed:([2019] 3 HKLRD 516, §95-96, footnotes omitted)
“95. Before setting out the procedure that should be employed when a defendant makes a claim of having assisted the authorities there are two matters that need to be mentioned. The first is how to evaluate the assistance and in this respect we wish to take the opportunity to clarify that the assessment of the information or assistance rendered by a defendant should be evaluated on the basis of whether it was "of practical use". It should not be limited to whether it leads to "a tangible result", such as a successful arrest or prosecution, for as acknowledged by both Macrae V- P and McWalters JA, in their respective judgments in HKSAR v Kilima, this test is far too restrictive in the context of criminal intelligence or investigation. As explained by Macrae V-P, whether a discount in sentence should be awarded for information or assistance given by defendant to the authorities depended on whether the assistance was "of practical use" and that such term clearly encompassed the type of information which "could potentially assist or had actually assisted the authorities", as described by the Court of Final Appeal in Z v HKSAR.
96. In future, we expect that law enforcement agencies will assess any information or assistance rendered by a defendant on the basis of whether it is "of practical use", and not restrict such assessment to whether it led to "a tangible result".
Application of sentencing principles
In the present case, the cocaine involved is 297 grammes. Accordingly, had the accused been convicted after trial and given her role as an international courier for reward, the starting point for her sentence would have been 12 years and 9 months. In my judgment, an appropriate enhancement for bringing the drugs across Hong Kong’s borders would be 6 months. That makes a starting point of 13 years and 3 months.” Given her active and continuing assistance in Father John Wotherspoon’s campaign, I think a reduction of 3 months’ imprisonment would be appropriate. I regard that reduction as in the nature of a down payment, and in the event of continuing assistance to that campaign, it would be open to the Chief Executive to make further reductions to mark such assistance. Ensuring that the Chief Executive is aware of that contribution is something that I will have to leave in the hands of the accused. In any event, for present purposes, the starting point is 13 years.
The accused is entitled to a discount of one-third off her sentence for pleading guilty at the first opportunity. As indicated earlier in these reasons, the accused has provided assistance to Customs and Excise Service. As noted earlier, the information provided is detailed and the accused has done all she could in a genuine attempt to help the authorities. The assessment by an independent officer of the Service has characterised the assistance as of potential practical use.
On a review of the authorities, as a recognition of the assistance, it seems to me this case goes beyond what McWalters J observed in Lo Sze Tung Stephanie (above) which might place the discount between 33 and 40 per cent overall. In my judgment, the framework for analysis puts her into the “40 to 50 per cent” bracket. Of particular assistance in this regard is the analysis of Yeung Acting CJHC in Cheng Weiguang (above). In my judgment, given the nature of the assistance, the genuineness of the assistance and the detailed manner in which the assistance has been given and the preparedness to give evidence but recognising the unlikelihood of that occurring, the appropriate overall discount is 42 per cent.
This is yet another case where a person of apparently previous good character was lured by the promise of reward to carry drugs from Africa to Hong Kong. I accept that she is remorseful and I accept she was persistently cajoled into undertaking the conduct which she would never ordinarily have considered, let alone undertaken. She is yet another person who has been shamelessly exploited. She leaves behind in Nigeria a family, including a sick husband who is suffering from a presently undiagnosed illness, and a number of children which are probably of an age where they need their mother the most. I can readily appreciate the temptation visited upon the accused in this case. For all that said, she did give in to the pressure to undertake the conduct which she clearly knew was wrong, and I venture to suggest she knew it was seriously wrong.
Before I pronounce sentence, I wish to emphatically thank counsel for the prosecution, Mr Michael Tsang, Senior Public Prosecutor, and counsel for the accused, Mr James Sherry leading Ms Charmine Cheung. Their combined efforts in identifying with precision the real issues, and the real mitigation in this case and the principles which underline it and presenting that with clarity is greatly appreciated. All of this has had a real impact on my evaluation of the sentencing outcome in this case.
Would the accused please stand up? The arithmetic of sentencing in cases like this may, on a superficial analysis, appear to be cruel and heartless. However, such as are the dangers of the drugs such as cocaine, the deterrence is plainly necessary. Indeed, the dangers that she faced and the risk that she took were not limited to just being arrested and punished for trafficking in dangerous drugs. Had one of those pellets burst while it was inside her body, this case may have ended in the Coroner’s Court, not the High Court. The mitigation that has been advanced has been cogent and powerful. Accordingly, the least sentence that the court can pass on the accused is 7 years and 6 months’ imprisonment, and that is the order of the court.