It is alleged that she, on 8 April 2017, at the Hong Kong International Airport, Lantau Island, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 6,960 millilitres of a liquid containing 4,770 grammes of cocaine.
The defendant pleaded not guilty to the charge and was convicted of the offence after trial before the jury by a majority verdict of six to one.
Facts of the case
On 6 April 2017, the defendant boarded a South African Airways flight number SA225 from Sao Paulo to Johannesburg in South Africa and arriving on 7 April. On the same day, she boarded South African flight number SA286 from Johannesburg to Hong Kong. She arrived in Hong Kong on 8 April at around 12.25 Hong Kong time.
At about 1337 hours, she entered the green channel at the Customs Arrival Hall B of the Hong Kong Airport. She carried a black waist bag around her waist and a backpack on her back. She pushed a baggage trolley which contained a purple hand carry bag and two suitcases, one brown suitcase and one pinkish purple suitcase wrapped in orange plastic wrappings.
When she arrived at the green channel, the defendant was stopped by Acting Chief Custom Officer Yang. When Officer Yang asked the defendant where was she from in Mandarin, she did not respond. When Officer Yang asked where she was coming from in Punti, the defendant replied “I’m in a hurry.” Officer Yang then asked which identity document she was holding, the defendant then passed her PRC passport to Officer Yang who then told her, the defendant, “customs check” and handed her over to another customs officer, Lee Dik-long, PW2.
Officer Lee then conducted an x-ray examination of the defendant’s two suitcases which revealed suspicious images. She was then brought by Senior Customs Officer Leung Kwok-ki to inspection counter S6 to carry out baggage inspection.
At the baggage inspection counter, Officer Lee together with Officer Leung cut open the orange plastic wrappings of the two suitcases. At Officer Lee’s request, the defendant opened the two suitcases. Inside the brown suitcase, a batch of dried seafood and two boxes of chocolates were found, together with four cylindrical cans.
Officer Lee then used a cloth to conduct drug sampling on the four cans. A positive result of cocaine was found. Officer Lee opened one of the cans and conducted a reagent test. A positive test of cocaine revealed in relation to the liquid found inside the cylindrical can.
At 13.50 on 8 April 2017, Officer Lee cautioned the defendant who remained silent under caution.
As requested by Officer Lee, the defendant then unlocked the pinkish purple suitcase and found a batch of dried seafood and two boxes of chocolates together with five cylindrical cans. Officer Lee again used a cloth to conduct drug sampling on the five cans, revealing again a positive result for cocaine.
A preliminary inquiry was conducted with the defendant at around 15.35 to 15.55 on 8 April where she was under caution, then she answered questions voluntarily raised by Customs Inspector Chan. She signed on the written record of preliminary inquiry for immediate follow-up investigation.
A video-recorded interview was then conducted with the defendant by Inspector Chan in the presence of another officer at around 22.26 on the same night. The defendant denied knowledge of the drugs under caution and maintained that she thought the cans contained açai juice.
As mentioned, the defendant was convicted after trial by the jury and it is evident that the jury have been satisfied beyond reasonable doubt that the defendant knew about the drugs in the cans at the time of the offence and this is the basis whereupon I should sentence the defendant.
Sentencing Trafiffs
Now, the courts of Hong Kong have taken a severe view of drug trafficking, particularly in relation to hard drugs such as cocaine. This is because these types of drugs are highly addictive and have serious and deleterious consequences for both the individuals and community at large.
Such a serious view is reflected in the maximum sentence provided for the offence of drug trafficking in dangerous drugs under section 4 of the Ordinance, that is one of life imprisonment and $5 million fine upon conviction on indictment. It is also reflected by the courts in the nature of 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 in the form of tariffs for various forms of dangerous drugs, including the drugs, the subject of the charge in this case, namely cocaine. And that tariff, as is applicable to trafficking in cocaine follows those of trafficking in heroin, as the Court of Appeal held in HKSAR v Abdallah [2009] 2 HKLRD 437.
According to that tariff, quantities between 4,000 grammes and 15,000 grammes of cocaine would attract a starting point for sentence of between 26 and 30 years’ imprisonment. The quantity of cocaine in this case is 4,770 grammes. Thus the purely arithmetic starting point would be approximately 26 years and 4 month.
And I must point out here that the ultimate question before the jury at trial was whether the defendant had knowledge of the cocaine found in the cans inside her luggage. On the basis of the jury’s guilty verdict, it must follow that they found the defendant having knowledge of those drugs in the cans which she brought into Hong Kong. And as said, I must sentence the defendant on the basis of that factual finding made by the jury’s verdict.
I am aware also that whether the international element present in this case constitutes an aggravating factor is a matter of fact and degree, as the Court of Appeal recently held in HKSAR v Fong Yau Heung [2022] 2 HKLRD 99. In view of the fact that the defendant came to Hong Kong and as the jury found, she knew that she was bringing dangerous drugs into Hong Kong, the international element of the defendant’s offence would, in the context of this case, constitute an aggravating factor and would, as the norm and as a matter of consistency, necessitate an extra 2 years’ imprisonment on top of the arithmetical starting point just derived. This brings the starting point for sentence to one of 28 years and 4 months.
Mitigation
As can be seen from her antecedent statement, the defendant is now 54 years of age. She was born in Guangdong, China. She attained up to secondary level of education in mainland China. She went to Brazil in 1996 and later became a permanent resident there. She used to operate a shop trading in handmade jewellery earning a monthly income of around Brazilian Real $8,000. She ceased operation in 2016 when her father passed away and she had to look after her mother in mainland China from time to time. She took up odd jobs afterwards.
Now, in mitigation on her behalf, Mr Raffell highlight the defendant’s background and submitted that the extreme stress that the defendant had been suffering since her arrest five years ago because of this case as well as the dramatic effect this case had on her physically and mentally should be something that this court should take into account. In addition, plea was made on her behalf about her mother’s ill health which also contributes to her anxiety and stress.
Unfortunately as the authorities have consistently held, in a serious case of this nature involving a large quantity of dangerous drugs, the background of the defendant would carry little weight as a matter of mitigation.
Nevertheless, the court accepts that this case has indeed been hanging over the defendant’s head for over five years since her arrest in 2017, during which period of time she had been remanded in custody. This was the second time she was convicted upon trial for this case, this being a retrial upon her successful appeal earlier this year in January.
The course of events would no doubt have caused the defendant substantial emotional stress and trauma. Viewed in that light, it may be of some consolation to the defendant that this court may take into account such emotional trauma and the, so to speak, delay occasioned through no fault of anybody and especially through no fault of the defendant into account in exercising my discretion, (see HKSAR v Chan Pau Chi and Others [2020] HKCA 496 and chapter 42-30 of Sentencing in Hong Kong, 10th Edition).
In the particular circumstances of this case, I am prepared to take into account the emotional trauma and strain suffered by the defendant and the delay, through no fault of hers, that she has been suffering during these past five years. And I am prepared to exercise my discretion and give her a further reduction of 6 months.
Considering all the circumstances of the case, including the defendant’s background and the mitigating factors advanced on her behalf, I take the view that the following sentence is appropriate.
I adopt a starting point for sentence of 28 years and 4 months which has taken into account the aggravation for the international element present. I then give a discount of 6 months to account for the emotional stress and trauma as well as the delay occasioned in these proceedings, although I stress through no fault of anybody.
There being no other mitigating factors warranting further discount, the sentence I impose on the defendant is therefore 27 years and 10 months. This is the sentence I impose, 27 years and 10 months.