Although the saga of the accused started long before his arrival at the Hong Kong International Airport, it is that we must focus on. It is common ground that he presented at the Customs Arrival Hall in the airport carrying a small suitcase and a briefcase.
A customs officer examined the luggage of the accused which was placed in the x-ray screening device and the result of that screening aroused suspicions in the officer. He asked the accused, “Is that your baggage?” to which the accused answered “Yes”.
The officer then examined the baggage and when he took out the personal items found in the luggage, he still considered that the luggage was quite heavy. Accordingly, he sent the baggage for a second x-ray. The second x-ray caused the officer to suspect there was a false compartment in the baggage. He cut open that part in the suitcase which was trial Exhibit P22. He then noticed inside the compartment that he had just cut open, there was something wrapped in a white-coloured substance, he cut that open. He then saw a package wrapped in a blue paper and inside the blue coloured paper, he saw a plastic bag. Having got that far, he conducted a screening test which showed positive to cocaine.
The accused was arrested and cautioned. The officer then said, “Do you know what it is?” The accused said, “I do not know. I thought it was a protection for a laptop”. The officer then asked, “Where will you take your baggage to?” The accused answered that he would be taking them to the US. The officer then asked the accused “Where did you buy the suitcase?” The accused answered him, “I bought it in front of a shopping mall in Brazil.” That was not exactly true. He did buy two suitcases in Brazil, however, the ones he was carrying were not those bags.
In due course, the accused submitted to a video-recorded interview under caution. The accused declined to answer questions put to him. At trial, I directed the jury that they could not hold that against him. I assert that I do not hold the exercise of that right of silence against him in determining the appropriate sentence.
The story of how the accused got to land in Hong Kong with 3.372 kilogrammes of cocaine is a long and involved one. The accused lived in a small town in the state of Minnesota in the United States. At trial, he told the court he had been lured into what he now realises was a scam. The essence of the scam was that a young woman had inherited money in a West African country but could not access the money. It was said that the inheritance was equal to something of the order of US$10 million. The accused was invited to, in effect, purchase the right to a portion of the inheritance if he would only sign some documents and help release the money. In the result, he declined to invest in the acquisition of a portion of the inheritance but agreed to assist in exchange for the five per cent for expenses. In the course of what appeared to be lengthy exchanges, he told the jury he was persuaded to go to Sao Paulo in Brazil to pick up documents to take to Paris in order to bring the deal to fruition. He said he did that and was told that two million of the inheritance had been credited to an account in his name in Germany in an obscure German bank. He could not access the money and was told he had to go once again to pick up more documents to complete the transaction. This time the documents had to be taken via a somewhat secured route back to Chicago. At least on the second journey, it was related to him that the documents were in concealed compartments in luggage which had been supplied to him by those who said they were active in trying to secure the inheritance. He successfully arrived in Chicago, the documents were picked up and further money which he believed was part of the inheritance was credited to the same obscure German bank.
At trial, the court saw copies of what was said to be the WhatsApp communications between himself and persons working towards securing the inheritance. The court also saw WhatsApp messages purporting to come from the young woman who is supposed to be the beneficiary of the inheritance.
Once again, the accused testified that he was unable to access the money after the Chicago trip which was said to be in credit in this bank. He told the jury he was suspicious in varying degrees about what was going on. Indeed, in the exchanges via WhatsApp concerning the second trip, that is Minnesota to Sao Paulo to Chicago, there were references to his concern that there might be drugs in the suitcases supplied to him in Sao Paulo.
The third trip was, at least for the proceedings on indictment in Hong Kong, the fateful trip. In many respects, the third trip was a replay of the first and second trips. He was told that more documents were needed. His own suitcases were swapped for him in Sao Paulo and he was told that the documents were in the secret compartments in the luggage that he received and that he should take them to Hong Kong where, finally, at long last, the inheritance would be credited to him so he could pass it on to the beneficiary in West Africa. On each occasion, he expressed his doubts. In relation to his second and third trip, we have his doubts expressed in WhatsApp messages. On each occasion, he was reassured by the very people who were running what was obviously a scam. On each occasion, he expressed varying degrees of distrust of these people and yet he was, in the result, reassured at least, so he said, to the stage of carrying the luggage given to him. The jury, by their verdict, could not have believed that.
The foregoing description of the saga wherein the accused landed in Hong Kong is very brief and is a somewhat bland description of what happened. Frankly, the more details which were layered into the description of what happened, so it seemed to me, the more incredible it sounded.
For my part, I think the accused was carrying drugs on the first and second journeys. Whether he knew that that is what he was doing is something I need not to determine. I think almost certainly he knew that. However, blindingly obvious that might be now, none of that is part of the indictment upon which he was convicted following the verdict of the jury. I make the point so as to make a further point which is that I cannot and do not sentence the accused for these other two journeys.
At trial, the issue was whether the accused knew that there were dangerous drugs in the secret compartments in the luggage he sought to carry through the green channel at Hong Kong International Airport. As I say, he was of the belief that there were secret compartments and his testimony was that the secret compartments contained the very documents he needed to finally secure the inheritance.
By their verdict, the jury must have been sure that he knew there were dangerous drugs in his luggage. They, by their verdict, must have concluded that at least by the time he came to carry the third set of luggage on his journey which ended up in Hong Kong, he could not have believed that what he was carrying was documents in secret compartments. In my opinion, for what it is worth, I could not see how the jury could have come to any other conclusion. In common with the jury, I am sure that the accused knew there were dangerous drugs in the secret compartments in his luggage in the third journey.
I am not sure what the motivation of the accused was to go through with this hare-brained scheme. I cannot see conceive of how taking dangerous drugs to Hong Kong could possibly assist in the liberating of an inheritance of this West African maiden. The accused testified that once he was arrested in Hong Kong and the cocaine detected, he realised he was the victim of a scam.
In the course of the trial, I learned that the accused had been diagnosed with ADHD later in life. He told the court he takes medication for it. For the purpose of sentence, I thought it would be prudent to ask for a medical report as to what, if any, specific difficulties the accused might have in prison suffering, as he does, from ADHD albeit under appropriate medication. The psychiatric report I received from the Commissioner of Correctional Services reveals that he continues to receive the medication. It is clear from that report he continues to receive appropriate medical supervision and the effect of the report is that provided he keeps with the medication, his ADHD will not significantly impact his incarceration.
The accused is a mature man now aged 57. He was, at one stage, married and has one child. He is now divorced and, before his incarceration lived in a small town in Minnesota. I was informed today that he has recently been the beneficiary of a grandchild and one of the obvious consequences of his incarceration in Hong Kong is that he will not likely see that grandchild for some considerable time. That must be a very painful matter for him to consider.
Prior to his travel to Hong Kong, he worked in the construction business as a qualified concreter. Prior to that, he had been in the army for something of the order of six years and received an honourable discharge for that. He holds a degree in environmental science which is an achievement in itself, achieved as it was at a mature age and part-time but it is the greater achievement for a person suffering at the time from ADHD.
He has one conviction for possession of ‘Ice’ in Minnesota. There are other possible convictions for what could be serious road traffic offences. For those offences, the accused was said to be incarcerated. The problem with the list of previous convictions that I received is that this only came to light in the course of the trial and I regret to say that it did so in a somewhat ham-handed way on the part of the Customs and Excise Service. I will take account of the drug conviction for the possession of ‘Ice’ for which he received a sentence of over 6 years. There were also, on this list, a series of road traffic offences which appeared on the face to be quite serious because imprisonment was ordered for some of them. However, I do not think it is appropriate or prudent to take account of the other road traffic offences. They were not admitted, they were not drug-related and, more importantly, they were not proved in the manner recognised by the laws of evidence and procedure in this jurisdiction. Given my understanding of how ADHD affects mature persons, I would, in any event, have a suspicious that at least some of the road traffic offences had what I might call an ADHD component.
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 and it is easy to see why. The drug has terrible consequences for the individual. It is addictive. Ridding oneself of an addiction to cocaine 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 includes the deployment of medical and health facilities to help people who become addicted to these 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 and 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 cocaine.
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 and Others [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 R v Lau Tak Ming and Others (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 also considered guidelines for cases such as the present one where a quantity greater than 600 grammes was found in the possession of the accused.
The accused trafficked in 3,372 grammes of cocaine. The applicable sentencing guidelines in Abdallah (above) provide for a sentence for quantities between 1,200 grammes and 4,000 grammes to attract a sentence, if the accused has been convicted after trial, of between 23 and 26 years.
Role of the Accused
It is critical to determine the role of the accused in the crime (see 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 that they are sentencing for a courier or storekeeper, there is a range of culpability even if, as in this case, the accused can be characterised as a 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 relevant guideline. The Court of Appeal rejected a sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
There is also a long line of cocaine authority which suggest that international traffickers should receive an enhancement. In my opinion, Herry Jane Yusuph (above) clearly confirms that and I propose to adopt what I considered to be, with respect, the somewhat nuanced approach in Herry Jane Yusuph (above).
Application of Sentencing Guidelines
Applying a strictly mathematical approach of the guidelines for sentencing in cocaine cases would result in a term of imprisonment of 25 years and 3 months. On any view, this is a very long sentence. What appears in the guidelines for sentencing for substantial quantities of cocaine, such as in the present case, is what I might call a flattening of the sentencing curve. In my opinion, an enhancement in recognition of the role of the accused as an international courier of cocaine must, accordingly, be somewhat flattened. The authority suggest an enhancement for international trafficking between 1 year and 2 years.
I have taken account of the previous drug conviction. I have nevertheless not enhanced in any way his sentence because of it.
There is perhaps a cruel arithmetical approach to sentencing in dangerous drugs such as the present one. The sentences are heavy and underlying those sentences is the clearest policy of deterrence. This level of sentence and enhancement for the role of the accused turns what is a very large sentence into a larger sentence. In an attempt to temper justice with mercy, I propose to enhance the sentence which is derived from the strictly mathematical application of the guidelines for sentence for cocaine and I intend to do so by 6 months. Accordingly, the sentence of this court is that the accused be imprisoned for 25 years and 9 months.