The officers asked the 1st and 2nd accused to submit to a search of their luggage. In the luggage and on a device on the back of the 1st accused was a plastic packet containing 4.02 kilogrammes of a solid containing 3.08 kilogrammes of cocaine. In her suitcase was found plastic packets containing a total of 1.469 kilogrammes of a crystalline solid containing 757 grammes of methamphetamine hydrochloride. In the device strapped to the back of the 2nd accused has found a plastic packet containing 3.98 kilogrammes of a solid containing 3.16 kilogrammes of cocaine. In the suitcase of the 2nd accused was found a solid weighing 1.474 kilogrammes containing 694 grammes of methamphetamine hydrochloride.
I do not propose to summarise the many and varied answers to the questions asked of them by the Customs and Excise Service. It is clear they admitted travelling together. The 1st accused had with her two mobile phones and US$2,000 and a small amount of South African Rand, the 2nd accused having with her two mobile phones and possession of US$2,000 in cash and South African Rand 1,150, made admissions accordingly. It is clear that they travelled from Johannesburg to Hong Kong and had round-trip tickets to return on 10 March 2020.
The retail value of the cocaine seized was something of the order of HK$9 million, and the methamphetamine hydrochloride which was seized was valued at about HK$1.85 million.
It is now admitted that both the 1st accused and the 2nd accused were jointly and unlawfully trafficking in the cocaine and the methamphetamine hydrochloride seized in this case.
Procedural History
Both accused were put up before a magistrate on 7 March 2020. They were remanded in custody. Eventually, on 1 March 2021, they appeared before Mr Wong Ching-yu sitting as a permanent magistrate in the Eastern Magistracy. On that day, at committal proceedings, both accused pleaded guilty to jointly trafficking in drugs and trafficking in the quantities mentioned therein, and admitted Summary of Facts. The learned magistrate committed both the 1st and the 2nd accused to this court for sentence.
As the result of the confirmation by counsel of their respective pleas of guilty and admissions of the facts, they are convicted as charged.
Background and Mitigation
1st accused is a holder of a Republic of South Africa passport. She was born in South Africa and is now aged 67. She is a widow living in Durban in South Africa. She attained Level 12 education.
2nd accused is also a holder of a passport of the Republic of South Africa. She was born in South Africa and is now 64 years of age. She also lives in Durban. She received the university education in England.
Both, through their counsel and through letters supplied to Father John Wotherspoon, have admitted their abject remorse for this act of, putting it bluntly, monumental stupidity.
Sentencing Principles: Starting Point (Trafficking)
The Community of Hong Kong, and as a result the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to cocaine and methamphetamine hydrochloride. These particular drugs have terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’, for example, is to say the least, an arduous process and sadly, history demonstrates that attempt to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. Ridding oneself of an addiction to cocaine is just marginally less challenging but not much.
There are serious consequences for the community as well. One of these consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private and, perhaps more pertinently, in public can be quite dangerous. The view of the community and the courts is reflected in the nature and of the sentence and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and the community take in relation to trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including methamphetamine hydrochloride and cocaine, which are, of course, subject to the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
In relation to methamphetamine hydrochloride, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. The court held that for quantities over 600 grammes, the appropriate approach was to sentence in the same way as for heroin and cocaine as appears in HKSAR v Abdallah [2009] 2 HKLRD 437.
The source of guidelines in relation to 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 R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in Lau Tak Ming (above) are appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in Abdallah (above). That decision also provided guidelines for cases where the quantity of cocaine was greater than 600 grammes.
Given the substantial quantities of both cocaine and ‘Ice’ involved in this case, and given those quantities both exceed 600 grammes, the only approach is to aggregate the cocaine and methamphetamine hydrochloride and treat the aggregate as the basis for sentence.
Sentencing in Joint Enterprise Cases
The charges which the two accused pleaded guilty and were committed for sentence are those total amounts of the individual drugs. On that premise, at these levels of narcotic, there is no distinction between cocaine and methamphetamine hydrochloride. The total is a narcotic content of 7.691 kilogrammes. On arithmetic calculation, applying the guidelines, that produces a starting point for sentence of 27 years and 4 months.
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.
Role of the Accused
It is critical to determine the role of the accused in the crime, and I cite HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58-61, 64-68 for that proposition. In this case, the Court of Appeal recognised that although the arithmetic starting point derived by sentencing guidelines for drugs such as cocaine and methamphetamine hydrochloride start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability and even if a trafficker can be characterised, as in this case, as a courier. The Court of Appeal held that an accurate characterisation 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 relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Application of Sentencing Principles:
Discount for Plea of Guilty
The accused have pleaded guilty and admitted a set of facts at the earliest practical moment and they are entitled to a full discount of one-third from the starting point that I intend to fix.
The Role of the Accused
The accused have engaged in a joint enterprise to bring cocaine and methamphetamine hydrochloride into Hong Kong from another country. The guidelines provided for the assistance of the court say the calculation of an aggregate sentence is premised, as I say, on storekeepers and couriers. International couriers have traditionally, and for good reason, being regarded as attracting a more serious sentence. The authorities empowered the court to impose the sentence which is different to the arithmetical calculation based on the guidelines where the role of the accused justifies that. In my view, it would be appropriate to select a starting point of 28 years and 6 months. Such an assessment in terms of selecting a starting point were only a year and 2 months higher than the arithmetical starting point might, on one view, be considered over-generous. The rationale which underlies the selection in this case is that at these very large quantities of narcotics, the sentencing curve flattens out, and some sense of proportion needs to be kept.
Other Factors
Of course, both of the accused were aged in their 60’s. The authorities clearly established that age is not a relevant factor. The rationale which underlies those authorities is that if different treatment was given to persons of age or approximately aged or the approximate age of the accused, then traffickers would be tempted to choose such person as opposed to younger and possibly more sprightly members of the community. Whether the time has come to re-examine the underlying assumption of this rationale is not a matter open to this court to consider. The authorities on this topic are clear and binding. However, where the traffickers might be more tempted to choose more senior members of the community is, I think, open to serious question. It is difficult to imagine how a trafficker might have said to, for example, the two women in this case that they should not worry because Hong Kong sentences less for elderly people.
As indicated earlier in these reasons, I did ask for enquiries to be made about the impact of prison on the 1st accused because counsel acting for her suggested she was having some serious mobility problems in the prison. I have received a medical report from the medical officer of the Lo Wu Correctional Institution and I am satisfied that, broadly speaking, all that can be done is being done as far as the mobility issue is concerned. The 1st accused has also been diagnosed with hypertension during the course of her stay in custody, and this is now being attended to. There are some issues with her vision, which were also being attended to appropriately. I am grateful for the medical report but what it has done is convince me that there is no proper basis for me to adjust the sentence on the basis of issues of mobility or health.
I have also been informed that both of the accused have now joined Father John Wotherspoon’s programme. This is a subset of the programme which specifically targets South Africa and both accused are helping with that. This is to be encouraged because it has the potential to deter others from that region from succumbing to the temptation for a quick injection of cash to carry drugs to Hong Kong from South Africa. It also indicates the degree of remorse on the part of the accused. I propose to reduce the sentence of both accused respectively by 3 months in recognition of this. I regard this kind of reduction as something in the nature of a down payment. It seems to me that it is in Hong Kong’s interest to deter others from bringing drugs to Hong Kong. If the accused continue with this programme, it seems to me that the executive branch of the Hong Kong Government, which has clemency power, has power to recognise further assistance should that be forthcoming.
I should add that so far as the medical condition of either of these two women, the executive has power to do what is necessary if their health declines. These are contingencies beyond that which can be dealt with in this stage of the proceedings, and I leave that in the hands of the executive.
I must confess that as I drafted these reasons, I kept coming back to the question of what possessed these women of mature age and hitherto good character and decent education to start trafficking in dangerous drugs by carrying them to Hong Kong. I do not know the answer and I was tempted to speculate that the pressures must have been economic. They might not have been. It is disturbing to me that these two women faced the risk of a long prison sentence and one which may result in them dying in prison many, many thousands of miles from their home country. That is a matter which causes me concern but which is almost totally ameliorated by the relief that the chemicals that these two brought into Hong Kong will not be ingested into the systems of members of this community. Both chemicals have the potential to be so destructive. My anxieties about the specific situation of these accused is ameliorated by the relief that the interception of these women with these chemicals, that these chemicals are taken out of play for Hong Kong.
The net result of all this is that I reduce the starting point of 28 years and 6 months by one-third in respect of both of you. This produces a sentence of 19 years. In respect of both of you, I reduce that sentence by a further 3 months to recognise the participation of both accused in Father John’s programme.
That makes a total sentence for both accused of 18 years and 9 months.