On 15 July 2019, the defendant arrived at the Hong Kong International Airport from Addis Ababa via flight number ET608. She was intercepted by customs officers at Customs Arrival Hall A. A body search was conducted on her and a large pellet was found inside her underwear. She was arrested, taken to North Lantau Hospital and then to Queen Elizabeth Hospital on the same day. Over the next several days, the defendant excreted a total of 52 pellets from her body.
The total of 53 pellets found inside the defendant’s underwear and passed out from inside her body altogether contained cocaine in the amount as stated on the indictment.
The defendant testified that she was forced to carry the drugs into Hong Kong having been threatened that she and one of her children would be killed if she did not comply. On this issue, the jury clearly did not believe the defendant. I would therefore proceed to sentence the defendant on the basis that she was not operating under any duress.
At trial, it was admitted that the defendant was born in Conakry, the Republic of Guinea, in short, Guinea, on 24 January 1982, meaning that she is now 39 years old. She has three children currently aged 12, 6 and 5 years old respectively. She has a clear record in Guinea and in Hong Kong. It would also appear from the evidence at trial that prior to coming to Hong Kong in July 2019, the defendant had been conducting a trading business in Guinea which involved her travelling to different countries to source and to sell products.
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.
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 23 to 26 years’ imprisonment for quantities of 1,200 grammes to 4,000 gramme of cocaine.
The second step is to assess the defendant’s role and culpability based upon the evidence. 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 courier. I assess her 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 the 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 defendant, trafficking in 1,252.7 grammes of cocaine, a mathematically calculated place within the sentencing band as already mentioned would be 23 years’ imprisonment.
Taking into account the defendant’s role and culpability and the weight of the narcotic in which she 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 23 years’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. I am bound by Court of Appeal authority in the Abdallah judgment to enhance the starting point to allow for the international element in the form of the importation of cocaine into Hong Kong from Ethiopia. In Abdallah, the Court of Appeal stated that the enhancement for amounts above 1 kilogramme is not envisaged to be less than 2 years’ imprisonment.
Following that guideline, this court accordingly enhances the sentence in this case by 2 years. This results in a notional sentence after trial of 25 years’ 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.
I have borne in mind the observations of the Court of Appeal in the judgment of Abdallah at paragraph 32, namely, that in cases of this kind, the grievousness of the offence dictates that meaningful mitigation is rarely available and that:
“The message must be consistently delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
Furthermore, the Court of Appeal again in the judgment of Yusuph at paragraph 44 that:
“Given the appalling consequences which the proliferation of dangerous, particularly addictive, drugs have on families, communities, the workplace, indeed, on the whole fabric and functioning of society, the reasons for a defendant’s involvement in the crime and his personal circumstances are of far less importance than society’s duty to protect its citizens and the courts’ paramount function of ‘denunciation, deterrence and punishment’ of those who would seek to traffic in dangerous drugs.”
In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
Mr Grounds submitted that the defendant had conducted the trial in a sensible way, agreeing with most of the prosecution case. As such, although there were 35 prosecution witnesses listed on the indictment, only three were called at trial, considerably saving the court’s time.
The fact that the accused has saved the court’s time by the way the defence was conducted, for example, agreeing to a significant part of the prosecution case can in some circumstances be a mitigating factor (see Sentencing in Hong Kong, 9th Edition at paragraphs 30-353 to 30-368 and the authorities cited there). For example, in HKSAR v Mak Shing, CACC 322/2001, the defendant was charged with a money laundering offence. At trial, he accepted the prosecution’s case and confined himself to arguing a legal point in relation to statutory interpretation.
On appeal against sentence, the Court of Appeal granted a 1-year reduction from a 4-year sentence on the basis that the way in which the defence was conducted considerably saved the court’s time.
I also bear in mind that the sensible conduct of trial is not in and of itself a mitigating factor. Both parties are under a duty to facilitate efficient case management. As the Court of Appeal said in HKSAR v Chan Wai Hang [2012] 3 HKLRD 726 at paragraph 40, a sensible arrangement for the disposition of non-contentious evidence:
“...is not to be seen, without more, as a basis for being granted a discount in sentence.”
In Chan Wai Hang, this was especially the case when most of the evidence is not “amenable to any sensible challenge” as paragraph 39 of that judgment.
I am however satisfied that the conduct of the defence in this case warrants a slight reduction in sentence. It is true that possession of the pellets or that the pellets contained cocaine could not sensibly be challenged. The defendant also sensibly admitted all the evidence relating to all of the seizures, her flight records and the street value of the drugs.
More importantly, the defendant went further and accepted from the outset that she knew what she was carrying into Hong Kong were dangerous drugs, a position which she never resiled from during the course of trial.
In her answer to a question asked of her on 24 July 2019, during her detention at the Tai Lam Centre for women, she had already said that the pellet she excreted contained “maybe cocaine” and this admission was not challenged at trial. As a result, the entire prosecution case after the opening submission that is, took less than one day to complete. The 1st prosecution witness was called at 2.30 pm on 19 October 2021 and the prosecution case ended at around 10.30 am the next day.
I am of the view that although this case may not be a complex one, nevertheless, the defendant conducted the trial in a sensible way, allowing importantly the court and the jury to focus on the sole issue of duress.
I therefore agree that there should be a small discount of 6 months from the defendant’s sentence. This leads to a reduced notional sentence of 24 years and 6 months’ imprisonment.
The sixth and final 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. In HKSAR v Suen Yuk Hang, HCCC 143/2021, DHCJ McWalters described this sixth step as follows:
“the judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but... one that is fair, balanced, timely and, just.” (and, ultimately, just.”(?))
In considering the sixth step, Mr Grounds provided this court with a number of sentencing cases relating to drug trafficking offences since the Yusuph decision that have shed light on the application of this sixth step to different circumstances. These cases include HKSAR v Kwan Wai Fan [2021] HKCFI 2036, HKSAR v Chan Ho Kwai [2021] HKCFI 2938 and HKSAR v Cheng Man Kit [2021] HKCFI 3032 plus others. This court has been assisted by the way in which those sentencing courts had applied this sixth and final step.
The defendant is currently 39 years old with three young children. Even with full remission, a sentence of 24½ years’ imprisonment will mean that the defendant will not be able to return to Guinea until she is in her mid-50s.
Mr Grounds urged upon me that the defendant will come out of prison a woman without a future and be deported back to Guinea. It will be hard for the defendant to reconnect with her children, even if she is able to locate them on her return. It will be difficult for her to earn a living. She will be returning to a country which could be very different from the one she left behind. Mr Grounds submitted that life for the defendant will be very bleak and will remain bleak for the rest of her life even after release.
As stated by DHCJ McWalters, the question for this court is whether the notional sentence of 24½ years’ imprisonment will be crushing on this defendant. I am of the view that it will be.
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 22 years and 6 months’ 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 while allowing hope that the defendant will be able to reunite with her children after she has completed her sentence.
I sentence you to a term of 22 years and 6 months’ imprisonment.