The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in 3,974 grammes of a solid containing 3,396 grammes of cocaine and was committed for sentence. She confirms her plea and agreement to the Summary of Facts before me.
Summary of Facts
Briefly stated, the defendant arrived from Doha on 2 February 2020 but was refused permission to land by the Immigration. Later that night, she was escorted by a Custom Officer to the Customs Arrival Hall for customs clearance. At that time, the defendant had a suitcase, a shoulder bag and a duty-free plastic bag with her.
Inside the defendant’s duty-free plastic bag, the Customs found what seems to be four packets of chocolate which were abnormally heavy and with traces of repacking. Upon closer examination, those four packets were subsequently found to contain a total of 199 packets containing the cocaine which was the subject matter of the charge.
Under caution, the defendant said that she did not know what the objects found in the chocolate packets were. She said her friend gave her the four packets in Doha airport and asked her to bring them to Hong Kong and that she would receive US$2,000 as a reward for so doing.
In a subsequent video-recorded interview, the defendant basically repeated the same account as before by maintaining that she thought that there were snacks inside the duty-free bag. She then added that she was asked by a male on 29 January 2020 to go to Doha to pick up a briefcase to bring it to Hong Kong and she was promised US$2,000 as a reward.
She said she arrived Doha on the following day and was asked to take it back to Hong Kong on 2 February. She said she thought that there may be contraband inside the duty-free bag and she did not and dare not take out the stuff inside for checking. She said that she had thought about throwing away the duty-free bag but she did not do so because she would like to get the reward.
On the other hand, she was worried about her family if she threw away the duty-free bag. She said she had WhatsApp exchanges with the male whom she saved as the name “Boss” in her mobile phone.
It was agreed that in February 2020, the estimated street value of the cocaine seized was about HK$4,204,492.
The defendant now admits and accepts that she was knowingly in possession of the dangerous drug seized for the purpose of trafficking.
The Defendant’s Background
The defendant is a Thai national. She was aged 34 at the time of the offence and is now aged 35. She received education up to Primary 6 in Thailand. She has a clear record in Hong Kong. She is a divorcee with four children who are respectively aged 16, 13, 10 and 2. Her father runs a restaurant and her mother a laundry shop in Thailand. Prior to her arrest, the defendant worked in the laundry shop and lived with parents and children.
Mitigation
Mr Kamlesh Sadhwani, counsel for the defendant, elaborates on the defendant’s family background and says that the defendant is a single mother of four and she committed the present offence because she heard that her family was heavily in debt to the bank and that her mother was on the verge of selling the family land to repay the debt. Therefore, the defendant decided to embark on the present offence so as to alleviate the family’s financial position.
Sentencing
The approach to the sentence of the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph. In the present case, I am satisfied that the defendant was just a courier. Therefore her sentence is to be determined primarily by reference to the relevant tariff and the quantity of the dangerous drug concerned.
The fact that she came to Hong Kong as a visitor specifically for the present offence, however, is an aggravating factor. The Court of Appeal has said that anyone who acts in this way in undermining the laws of Hong Kong deserves no sympathy. On the contrary, in cases of this kind where drugs were being imported into Hong Kong from abroad, this is an aggravating factor, HKSAR v Hong Chang Chi.
The tariff for trafficking in cocaine follows those of trafficking in heroin, HKSAR v Rojas. For the present purpose, the tariffs are laid down in HKSAR v Abdallah which says that trafficking in 1,200 to 4,000 grammes of cocaine narcotic attracts a sentence of between 23 to 26 years’ imprisonment after trial. In the present case which involves 3,396 grammes of cocaine narcotic, I adopt 25 years and 6 months’ imprisonment as the arithmetical starting point.
In view of the fact that she came to Hong Kong specifically for committing the present offence, I add 2 years on top of the arithmetical starting point, HKSAR v Chung Ping Kun. Therefore the starting point for the defendant is 27 years and 6 months’ imprisonment.
I trust that Mr Sadhwani has said all that can be said on the defendant’s behalf in mitigation. However, it is well-established that for offences as serious as trafficking in dangerous drugs, financial hardship is not a factor which may reduce the sentence, HKSAR v Lee Man Wai.
I find also that the defendant was not acting under duress either, as she had already embarked on her criminal venture before she thought about throwing away the duty-free bag and I note that Mr Sadhwani does not rely on any duress in mitigation.
I note also that the assistance that the defendant gave to the Customs has not been of any practical use so far. In my view, the major mitigating factor which may reduce the defendant’s sentence is her timely plea at committal, for which she is entitled to the full one-third discount which also cover her remorse: see Secretary for Justice v Tsang Ho Pong.
After the one-third discount, the sentence is reduced to 18 years and 4 months’ imprisonment.
Another 3-month discount is given to the defendant for her participation in Father John Wotherspoon’s campaign: HKSAR v Kilima Abubakar Abbas. I have regarded the defendant’s statement which is attached to Father John’s letter dated 13 July 2021. However, the information provided by the defendant has not led to any practical use or value to the customs.
I have regard to all is said in all of the mitigating letters submitted on behalf of the defendant. I note, in particular that the defendant’s four children are now respectively aged about 17, 14, 12 and 5. The effect of the sentence which I am going to pass on the defendant would mean that she would be absent during her children’s formative years. Generally speaking, the defendant’s family circumstances are not a factor which may reduce the sentence for an offence as serious as the present one.
However, as an act of mercy and perhaps a bit overgenerously, I exercise my limited discretion and grant the defendant a further 3-month discount.
Therefore the defendant is sentenced to 18 years 4 months minus 3 months, minus 3 months, equal 17 years and 10 months’ imprisonment.