The defendant testified in his defence and denied knowledge of the presence of the drugs, but on this issue the jury clearly did not believe the defendant, and so in summarising the case, I shall refer only to the evidence of the prosecution.
The evidence of the prosecution established that on 29 May 2019, the defendant was intercepted by customs officers after he had arrived on his flight from Johannesburg, South Africa, and was proceeding to the green channel. His luggage was searched, and in a black suitcase customs officers found a number of water filter cartridges that were contained in cardboard boxes. When customs officers unscrewed the bottom of one of these cylindrical cartridges, they found that it contained cocaine. Police were called and the defendant was handed over to them. In response to being arrested and cautioned by a police officer, the defendant said, “I charged someone $50,000 for bringing back the dangerous drug. I haven’t received the money.”
Subsequently, the defendant was taken to the Narcotics Bureau, police headquarters, where a video record of interview was conducted with him. In this video record of interview, the defendant said that he came to know a Chinese person by the name of Ng Gor at an amusement game centre and this person asked him to travel to South Africa and bring back to Hong Kong a package for him, in return for which he would be paid $50,000.
The defendant’s antecedent statement reveals that he was born on 22 May 1958 and so is now 63 years of age. He was educated up to primary school level 2 or 3 on the mainland and came to Hong Kong, on his evidence, around the age of 20. He has been in Hong Kong for some 40 years and has been employed in different jobs as an unskilled workman. It seems that a fair bit of his time was spent as a waiter in restaurants.
The defendant has a significant criminal record but it seems to involve primarily offences of dishonesty. Of his 11 convictions, 10 of them are for theft or attempted theft and at least six of those are for pickpocketing. For these offences, his sentences were usually between 10 and 12 months’ imprisonment. The most recent of his offences was in June 2016.
The defendant’s counsel, Mr Ching Wan-fung, informs me that the defendant was alone for years in Hong Kong and had been unemployed since his last release from gaol. Mr Ching seeks leniency for the defendant given his age.
The law relating to the sentencing of drug-trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug. Whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment, there was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve a reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straitjackets and did cater for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment. The first step is to assess the gravity of the offence, and as Macrae VP said in Herry Jane Yusuph at page 319, paragraph 57 of the report, this is done by:
“...focusing on the harm caused or created by the offence, which is principally gauged by the type and quantity of the particular drug concerned. Accordingly, the first step when approaching sentence for an offence of trafficking in a dangerous drug is for the judge to identify the relevant guideline band or bracket applicable to the quantity of drug concerned.”
The count in the indictment concerns only cocaine and the quantity of this drug in which the defendant trafficked was 4.62 kilogrammes. The relevant sentencing guideline decision for cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437. The relevant Abdallah sentencing band for 4.62 kilogrammes of narcotic is 26 to 30 years’ imprisonment for quantities of 4,000 to 15,000 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at page 319, paragraph 59, Macrae VP said of the sentencing guidelines:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant. It is not disputed that the defendant’s role was that of an international courier and that is the basis on which I assess his level of culpability as trafficker. There is nothing to suggest that he was, in any way, more heavily involved in the trafficking of dangerous drugs.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. This initial or preliminary step in the determination of an appropriate sentence is described by Macrae VP as a starting point in the calculation of the defendant’s sentence as opposed to the notional sentence after trial. The starting point is identified by reference to the quantity of the dangerous drugs and the role and culpability of the defendant. The notional sentence after trial will be the figure that is reached after consideration is given to whether there are present any aggravating factors.
In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors.
The assessment made in the second step is also relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
Applying the relevant Abdallah sentencing band of 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes produces a mathematically calculated weight-based starting point for the 4.62 kilogrammes of cocaine of 26 years and 2 months’ imprisonment. The figure of 26 years and 2 months is agreed by the parties as the correct mathematical calculation.
Taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine in which he trafficked, I am of the view that there is no justification for departing from the mathematically calculated place within the relevant band.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. After completing this fourth step, I will arrive at the notional sentence after trial. If there are no aggravating factors, then the starting point will become the notional sentence after trial.
It is not disputed that I am bound by the Court of Appeal authority in the Abdallah judgment to enhance the defendant’s starting point to allow for the presence of the aggravating factor that he was trafficking the cocaine across an immigration border. For this so-called international element in respect of this quantity of cocaine, the appropriate enhancement is 2 years’ imprisonment. This results in a notional sentence after trial of 28 years 2 months’ imprisonment.
The defendant appears before me as a person who has a significant number of previous convictions but none of them are for trafficking in a dangerous drug. Given the already high starting point and given the defendant’s age, I am not minded to regard his criminal record as warranting any further enhancement of the starting point. Consequently, the notional sentence after trial becomes 28 years 2 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. In Herry Jane Yusuph, Macrae VP discussed the new sentencing regime laid down by the Court of Appeal in its decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and the reference in that and other cases to the one-third discount for a plea of guilty being the high watermark for the discount to which a defendant is entitled on a plea of guilty. He said at page 326, paragraph 77:
“Although the ‘high watermark’ reference to discount ‘normally’ or ‘usually’ applies to the vast majority of cases in which a plea is entered at the earliest opportunity, ‘unless there are very special factors to be taken into account’, the one-third discount was not intended to be an impenetrable ceiling beyond which a judge cannot go if he has good reasons in the proper exercise of his discretion for doing so.”
As the defendant was convicted after trial, he is not entitled to the usual one-third discount. As he is a person with many prior convictions, there is little that can be said for him in mitigation. He is elderly but this cannot be a mitigating circumstance as he well knew the consequences of his actions. To use the language of Ngo Van Nam, there are no very special factors to be taken into account.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. This is particularly relevant to cases involving multiple offences where the principle of totality comes into play but that principle is relevant to any sentence which is the product of a process. At the end of that sentencing process, the judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just.
Mr Ching has emphasised the defendant’s age and the risk that he may not live long enough to enjoy his freedom again. The defendant is 63 years of age and a sentence as long as 28 years and 2 months will mean that even if he receives a further discount from the Commissioner for Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is well into his 80s.
It is, of course, quite possible that he will not live beyond his sentence and will end his days in prison custody. It seems to me that in determining whether the sentence is a crushing one on him, I must have regard to this possibility.
In the unusual circumstances of the present case, determining whether a sentence of 28 years and 2 months is a fair, balanced and a just sentence is not an easy task. I must bear in mind that a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced and unjust. I must also bear in mind that the sentence I impose must still contain the elements of denunciation and deterrence and be appropriately punitive.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced and ultimately just sentence for this defendant is 24 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted.
I therefore sentence the defendant to 24 years’ imprisonment. Mr Chan, stand up. The sentence of the court is that you be imprisoned for a period of 24 years.