COURT: The defendant pleaded not guilty to one count of trafficking in a dangerous drug. He was arrested at Customs Arrival Hall A at the international airport in possession of and unlawfully trafficking 3,951.7 grammes of a solid containing 3,410.9 grammes of cocaine. A jury convicted the defendant after trial by a majority of six to one.
The prosecution’s case is that 23 May 2022, the defendant, a Filipino national, was carrying a briefcase and a small suitcase lined with cocaine when he was stopped by Customs and Excise officers trying to leave Hong Kong International Airport via the “nothing to declare” green channel. He had arrived from Brazil via Doha.
The prosecution’s case is that he was randomly stopped by Customs and Excise and his luggage inspected. His two pieces of luggage, a briefcase and that small suitcase was X-rayed. The X-ray images were suspicious so they were more closely examined and hidden compartments were found in both pieces of luggage. White powder was detected inside the hidden compartments and immediately tested. Test results were positive for cocaine. The defendant was arrested for trafficking dangerous drugs and cautioned.
The defendant from the beginning denied knowledge of the white powder and said there were documents concealed in the two cases which he was given in Brazil to bring to Hong Kong for US$1,000 reward. He had been invited and paid to go to Brazil to inspect houses. This was his third such trip to Brazil for this purpose, but this was the first trip where he was asked to carry anything out of Brazil. He believed the bags to contain confidential and urgent documents that needed to be delivered to Hong Kong.
The reality was hidden compartments contained nine concealed packets of cocaine, which in total weighed nearly 4 kilogrammes.
Mitigation
The defendant comes from and resides in the Philippines. He is now 66 years old and was 63 at the time of his arrest. He is married with seven adult children and many grandchildren. He is a university graduate and a mechanical engineer. He started his own construction company at home. He has also during his career worked in the Middle East for a number of years.
There is not much that can be said in mitigation when the defendant has been convicted after trial by a jury. Mr Mughal has said all he can say on behalf of the defendant.
Trafficking Guidelines
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guidelines, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all of the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drug seized. The sentencing guidelines for cocaine was found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370, in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which were directed at trafficking heroin are equally to be applied in cases of trafficking cocaine.
Starting Point
For trafficking between 1,200 to 4,000 grammes, the starting point will be between 23 and 26 years’ imprisonment. Mathematically speaking, the total weight of 3,410.9 grammes of cocaine alone will attract a starting point of 25 years and 4 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. I will proceed on the basis that he was a courier coming in from overseas. He literally carried the drugs from A to B. I would determine the starting point of his overall sentence from the relevant tariff.
This leads me to consider the third step of where within the guidelines the defendant should lie and I will take into account what the mathematical starting point is for this quantity of cocaine. I have considered the facts of the case, the sentencing principles, the conduct of the trial by the defence and the defendant’s own circumstances. I intend to take a starting point of 24 years’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. There are none that carry any weight.
The last step of Herry Jane Yusuph is to stand back and look at the overall sentence in order to ensure it is fair, just, and balanced in all the circumstances of not only this offence but also the defendant. 24 years’ imprisonment is harsh and he may not live long enough to make it home to the Philippines. Sad and tragic as that is or may be, this likelihood and this term of imprisonment does not negate the seriousness of the offence and the quantity of drugs imported into Hong Kong. Therefore, it is not so harsh a sentence that it is unfair or unjust.
Accordingly, the defendant is sentenced to 24 years’ imprisonment.