COURT: On 2 January 2020, Ger Bruce Lewis Oluoch (hereafter “the accused”) arrived at Hong Kong International Airport from Nairobi in Kenya via Addis Ababa in Ethiopia.
On presentation to the immigration authorities, the accused was refused entry to land. He was brought to the customs area for inspection. A search was carried out on his suitcase and nothing suspicious was found. However, the officers suspected that he might be concealing dangerous drugs inside his body. Accordingly, he was brought to the North Lantau Hospital for medical examination. He was found to have foreign objects inside his body. At that stage, he was arrested and cautioned. Under caution, the accused stated that he had swallowed the items in Addis Ababa, and he was taken to Queen Elizabeth Hospital for further examination. Between 2 January 2020 and 5 January 2020, while in the hospital, the accused discharged a total of 62 packets containing a total of 727 grammes of a solid containing 602 grammes of cocaine.
The accused was interviewed under caution by officers of the Customs and Excise Service. In the course of that interview, the accused told them that he came to Hong Kong for the purpose of delivering the drugs and sightseeing. He admitted that he had swallowed the drugs in Addis Ababa. He was told that when he checked into his hotel in Hong Kong, somebody would come to pick up the drugs from him. He had been given money to purchase plane tickets and for his travel expenses. He was told he would receive a reward of US$4,500 for bringing the drugs into Hong Kong.
At the time of the arrest, the accused was in possession of two mobile phones and cash to the value of just over US$3,000.
The estimated street value of the drugs carried by the accused was just over HK$675,000.
Procedural Matters
The matter came before a magistrate on 4 January 2020. In the result, on 7 December 2020, the accused appeared before Mr Cheang Kei-hong sitting as a permanent magistrate. He pleaded guilty and admitted the Summary of Facts which appear on the court file. The learned magistrate committed the accused for sentence to this court.
Background and Mitigation
The accused is a Kenyan national. He was born in Kenya on 10 April 1975, and I think that now makes him 46 years of age. He is a married man with four children ranging from 17 to 5 years of age. He was employed and working in a tobacco company at a salary of US$480 a month.
Unfortunately, his wife was taken ill with a serious heart problem and the treatment including, I am told, surgery resulted in a dire need for money. That placed the accused under great pressure and he then took what he characterises as the worst decision of his life. There would be no one in this court who would disagree with that proposition.
I have read a letter from him. I have seen from that letter and from the submissions of Ms Crebbin, who appears for him today, palpable remorse for his conduct. His good character is also demonstrated by his assistance to the well-known campaign by Father John Wotherspoon to deter drug trafficking across international borders into Hong Kong.
He has during his time in prison decided to improve himself and he is taking a course from the Chinese University of Hong Kong in cognitive psychology no less. He has also undertaken religious studies. And all of that is to his credit.
He has a clear record in Hong Kong and I am in no personal doubt whatever that he has a clear record in Kenya.
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. The 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 those 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 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 to this charge.
Sentencing Band
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 & Ors [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and The Queen v Chang Chen Liu Sa [1994] 3 HKC 685, the Court declared that the guidelines in Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of 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 where a quantity of greater than 600 grammes was found in the possession of the accused.
The applicable sentencing guidelines provide for sentence for 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.
The Role of the Accused
It is critical to determine the role of the accused in the crime, and the authority for that is 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 of the sentencing guidelines for drugs such as cocaine start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability even if the trafficker can be characterised, as in this case, as courier. The 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 the accused above or below the mathematical application of the guideline. The Court of Appeal rejected the sentencing approach of trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Discount for Plea of Guilty
The well-accepted principles of sentencing 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 appropriate.
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; Abdallah (above) and 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 an appropriate 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: Herry Jane Yusuph (above) to which reference has been made) to take account of the role of the accused, including the relative culpability of persons who are couriers across international borders, there is an element of double counting in assessing sentence for international couriers. I use the phrase “an element” because I consider in some respects that the sentencing policy which, on the one hand, underlies the assessment of relative culpability of the kind of courier which brings drugs across international or intranational borders and, on the other hand, enhancement for taking dangerous drugs across such borders are not necessarily coextensive.
Assistance to Authorities
The principles are of long standing in Z v HKSAR [2007] 10 HKCFAR 183. Li CJ 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. *190 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 Appeal in that case recognised there might be a range of assistance depending on a variety of factors and recognised as a consequence 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 by the Court of Final Appeal in Z v HKSAR (above). In HKSAR v Lo Sze Tung Stephanie CACC 190/2017, the Court of Appeal comprising Justices Macrae VP, McWalters JA concentrated on the 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 matter was further considered by the Court of Appeal in HKSAR v Cheng Weiguang: ([2018] HKCA 274, §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.
And further, in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, the Court of Appeal reviewed the position as to the appropriate discounts and the criteria for providing such discounts. And again, boringly perhaps, I have set out a rather long passage from that. ([2019] 3 HKLRD 516, §95-96)
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
On the basis of an arithmetic calculation of the starting point, 20 years’ imprisonment would be appropriate. However, it is critically important to determine the role of the accused in determining where in relation to the arithmetic mean his sentence should lie.
On the Admitted Facts, the accused is a courier across international boundaries for reward. On any view, there must have been other persons organising the trip to Hong Kong. Others paid for his ticket and expenses. On a salary of US$480 a month, he would be unlikely to be in possession of just over US$3,000. However, even allowing for that, I consider that acting as a courier in these specific circumstances in crossing international borders puts this man in a serious light. And I assess the appropriate starting point for his culpability at 21 years’ imprisonment.
On any view, the accused has pleaded guilty at the earliest practicable opportunity. He is entitled to a full one-third discount.
Given the assessment of assistance to the accused, a further discount for his assistance to the community through Father John’s programme and his other mitigation, I assess a rolled-up discount at 39 per cent.
Disposition
Would the accused please stand up? The accused in this case is a family man of four children. He succumbed to the temptation to join a tragic parade of Kenyan nationals who carry drugs to Hong Kong through Addis Ababa. Just when these children, ranging from teenage to toddler need their father the most, he has rendered himself liable to the deterrent sentencing which operates in Hong Kong. Sadly, his children will not see him for a very long time. Hopefully, during that time, he will have equipped himself to better contribute to his community.
The least sentence that this court can pass upon him is imprisonment for 12 years and 9 months and that is the order of the court.