He pleaded guilty to this offence at the first opportunity in the magistracy and was committed to the Court Of First Instance for sentence. At the time of his plea, he also admitted the truth of the Summary of Facts which set out the circumstances of the commission of his offence. Before me, he has confirmed both his plea and his admission of that Summary of Facts.
The Summary of Facts reveals that the defendant arrived at the Hong Kong International Airport from Johannesburg on 6 December 2019. He was carrying a black suitcase and was intercepted by a customs officer in Customs Arrival Hall A for customs clearance. X-ray examination of the suitcase revealed a suspicious image. Furthermore, the luggage bore a name on its luggage tag that was different from the defendant’s name.
At first, the defendant said that he was not sure if he had collected someone else’s suitcase but the airline company, on whose plane the defendant had travelled, confirmed that the suitcase was checked in by the defendant. The defendant then unlocked the suitcase and when the suitcase was opened, the customs officer found 12 solid blocks wrapped in paper inside it. The defendant claimed that he did not know what they were and said that he had brought them back for his girlfriend whose name was Chu Ka-ying and who he said would be returning to Hong Kong two days later. He claimed she had given them to him to transport because she was worried that her luggage would be overloaded.
One of the blocks was cut open and white powder was found inside. A test of the white powder produced a positive result for cocaine. When the defendant was arrested and cautioned, he remained silent. And in a subsequent video record of interview, he also exercised his right of silence.
The 12 blocks were confirmed by the government chemist to contain the total quantity of cocaine that is the subject of the charge. This quantity of cocaine had an estimated street value of $12,838,445.
Airline records showed that the defendant flew from Hong Kong to Johannesburg, South Africa on 27 November 2019 on a Cathay Pacific flight. And when he returned on 6 December 2019, it was also on a Cathay Pacific flight. When the defendant checked in his luggage on 27 November 2019, it weighed only 8 kilogrammes, but when he returned to Hong Kong, the weight of his luggage was 23 kilogrammes. Airline records also showed that no passenger by the name of Chu Ka-ying travelled from Johannesburg to Hong Kong between 7 and 12 December 2019.
The defendant’s counsel, Mr Oliver Davies, informs me that the defendant was born in Hong Kong on 11 November 1994 and is now 26 years of age. He has a clear criminal record. He was educated up to Secondary School Form 3 level and is unmarried. The defendant was living with his mother prior to his commission of this offence. He has an elder brother but he was not living at home. At the time of the offence, the defendant’s father was living in mainland China and seldom returned to Hong Kong. His father made no financial contribution to the support of the family and the defendant became the sole breadwinner with most of his income going to support his mother. In June 2021, the defendant’s father suffered a stroke and returned to Hong Kong but is unable to work.
Mr Davies informs me that the reason for the commission of the offence was purely financial. The defendant had been employed for three years as a storekeeper for Shun Fung Delivery, earning around $21,000 per month. Before working for this company, he had done similar work at the airport. However, the protests in Hong Kong in 2019 led to a decrease in the work with Shun Fung, and ultimately, the defendant was laid off.
Mr Davies handed to me letters written by the defendant and his mother and emphasised how much the defendant regretted what he had done. He said the defendant is genuinely very remorseful. He understands that he will be sentenced to a considerable period in prison, and he hopes to use the time to study so that he may be a more productive citizen after he is released.
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 [2020] 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 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.”
In respect of the quantity of cocaine in which the defendant trafficked, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. The case lays down a sentencing band of 26 to 30 years’ imprisonment for quantities of 4,000 grammes to 15,000 grammes of cocaine narcotic.
The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of an international courier importing drugs from another country into Hong Kong by air. There is nothing in the evidence placed before me to distinguish this defendant from other international couriers. I assess his culpability and role at the same level as any other international courier.
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.
In respect of this defendant, trafficking in 9,917 grammes of cocaine, a mathematically calculated place within the 4,000 and 15,000 grammes of narcotic band of 26 to 30 years’ imprisonment would be 28 years 1-month imprisonment.
Mr Davies urges me not to take a strictly mathematical approach to sentencing and to take into account the defendant’s previous clear record, his good work record and the fact that he is highly unlikely to reoffend. He submits that by having regard to all these matters, I would be entitled to adopt the lowest possible starting point for this quantity of cocaine narcotic.
However, all of the matters to which Mr Davies has referred are matters that are encompassed within the one-third discount for his plea of guilty. I do not see that they will justify me by, in effect, double counting their mitigation value and using them to justify adopting a lower place within the relevant band when I am identifying the starting point for the defendant’s sentence. This was an issue that was addressed by Macrae VP in Herry Jane Yusuph at page 290, paragraph 78, where he said:
“We do not accept that certain forms of mitigation should, therefore, be taken into consideration before the discount for plea is considered. In our judgment, the proper approach to all mitigating circumstances, and the approach least likely to lead to confusion, disparity and the distortion of the sentence, is to consider them at the same time when assessing the overall discount from the notional sentence after trial.”
Taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine narcotic in which he trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 28 years 1 month’s imprisonment.
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 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 narcotic, the appropriate enhancement is 2 years’ imprisonment. This results in a notional sentence after trial of 30 years 1 month’s 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.”
The one-third discount which an offender receives for his timely plea of guilty will generally encompass the bulk of the mitigating factors available to a defendant, such as prior good character, remorse and impecuniosity as a motivation for the offence. I cannot see that there is present, in respect of this defendant, anything that could be characterised as a very special factor which would justify me going beyond the one-third discount for the matters referred to by Mr Davies when those matters are considered either singly or cumulatively. A one-third discount of 30 years and 1 month produces a sentence of 20 years and 1-month imprisonment.
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 may be more relevant to cases involving multiple offences, but in my view, the Court of Appeal was not limiting the sixth step to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and, ultimately, just.
As earlier mentioned, Mr Davies has emphasised the strong remorse that the defendant genuinely feels and the determination that he has to rehabilitate himself whilst he is in prison. His remorse and his determination to turn over a new leaf is reflected in what he has written to me in his letter. The letter written by his mother provides, I believe, further insight into the defendant. She talks of the financial support he regularly gave her when he was in employment and she speaks of him as being a good child and a filial son. She also mentioned that he did voluntary work in an aged home, helping out with the residents there.
The defendant is only 26 years of age. A sentence as long as 20 years and 1 month 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 not be discharged from custody until he is close to 40 years of age. This will make it difficult for him to be competitive when applying for jobs as he will have had no recent experience in any field in which he becomes qualified whilst in prison.
I am satisfied that in these circumstances, the final sentence will not be a just sentence but will rather be a crushing one. What this defendant needs is not just punishment but, equally importantly, encouragement to pursue the path of rehabilitation and to believe that if he does so, society will give him a chance. I believe that these considerations justify me exercising my sentencing discretion to reduce the final sentence to one of 18 years’ imprisonment, and that is the sentence that I impose on this defendant.
Mr Cheng, I sentence you to 18 years’ imprisonment.
ACCUSED: Yes.