COURT: The defendant was found guilty after trial of trafficking in 968.8 grammes of methamphetamine hydrochloride, ‘Ice’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The defendant was arrested on 29 June 2020 at the junction of Nathan Road in Nanking Street carrying a box by Customs and Excise officers. He was thought to be suspicious and was stopped. The box was opened and inside were nine metal pulleys but Customs and Excise officers were suspicious of the pulleys and invited the defendant back to their nearest office for a closer examination of the contents of the box.
Later, with the aid of cutting tools, the pulleys were all opened to reveal a bag of ‘Ice’ concealed in each pulley. They were not visible to the naked eye and the box was sealed when the custom officers stopped the defendant.
There was no admission from the defendant. He, at all times, denied knowledge of the drugs inside the box and co-operated fully despite no interpreter being present on day 1. He provided the officers with the passwords to his phones and allowed them full access. Obviously, nothing incriminating was found on his phones.
The defendant agreed to participate in a controlled delivery operation but it failed.
The defendant elected to give evidence and explained why he had $22,000 in cash in his pocket and why he had been in possession of that box.
He was convicted by a jury after trial, not a unanimous jury, but by a majority of 5 to 2.
Mr Davies has said all he can say under the circumstances. The defendant is a Form 8 holder and from Mozambique. He arrived in Hong Kong on May 2018 and had a clear record when he was arrested. He is now 31 years old and single. I have heard that he was in the used mobile phone business back in Mozambique and continued to buy second-hand phones in Hong Kong to sell in Africa even after he arrived here.
Sentencing guidelines in ‘Ice’ found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 600 to 1,200 grammes of ‘Ice’ is 20 to 23 years’ imprisonment. Therefore, trafficking in 968.80 grammes of ‘Ice’ would mathematically attract a starting point of 21 years and 10 months’ imprisonment.
It appears there is some evidence that the box may have come from overseas, but there is no evidence to indicate that the defendant played any part at all in the greater trafficking operation or had any knowledge of its origin. I will not enhance any starting point because of the possible aggravating factor that the drugs were imported into Hong Kong.
However, there is the aggravating factor of his status in Hong Kong, that of a Form 8 holder. It has been said time and time again that to commit such a serious offence in this territory when a guest here is an aggravating factor to be taken into account.
The only evidence of the defendant’s role was that he was a courier or a drug mule. There is no evidence to suggest otherwise. I have considered the recent Court of Appeal case of HKSAR v Herry Jane Yusuph and the six-step approach in sentencing drug trafficking offences. In that authority, the Court of Appeal strives to formulate the sentencing approach to trafficking in dangerous drugs with its emphasis on role and culpability rather than simple quantity and its use of discretion rather than arithmetic or a mathematical approach.
Therefore, taking into account the Court of Appeal’s intention in Herry Jane Yusuph, I have considered the bracket as set out in Tam Yi Chun referred to above, 20 to 23 years. I have taken into account the facts of the case and the defendant’s role as a drug mule. As I have said, I have no evidence he was anything other than a drug mule or more involved in this drug trafficking activity than a drug mule taking the risk of carrying the box of drugs from A to B.
As a result, I will take 20 years and 6 months as a starting point and add 6 months to that for the aggravating factor of committing this offence whilst allowed to remain in Hong Kong as a Form 8 holder. The defendant was convicted after trial and I see no mitigating factors I can take into account nor any reason to reduce that starting point of 21 years’ imprisonment.
Here, I concern myself with the last and sixth step or stage of the sentencing process, that is to step back and look at the overall sentence passed in order to ensure that it is fair, just, and balanced in all the circumstances of the offence and the offender.
I have weighed the sentence of 21 years’ imprisonment against this principle, the drugs involved, and the facts of this case as well as mitigation put forward. Standing back, it is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced, or unjust.
Accordingly, the defendant is sentenced to 21 years’ imprisonment.