COURT: The defendant pleaded guilty before the Eastern Magistrates’ Court on 29 August 2024 to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance for sentence.
The defendant admitted that on 8 June 2023, at the Customs Arrival Hall, Hong Kong International Airport, he unlawfully trafficked in a dangerous drug, namely, 549 grammes of a solid containing 427 grammes of cocaine.
He comes before me today for sentence, having confirmed his plea and admitted the Summary of Facts in support.
The Facts
The Summary of Facts reveal that at about 10.41pm on 8 June 2023, the defendant, a Brazilian male, arrived in Hong Kong by flight from Sao Paulo, Brazil via Doha, Qatar. He was intercepted at the “Nothing-to-Declare” channel. At that time, he was carrying a brown shoulder bag and pulling a black check-in luggage without lock.
An X-ray examination of the defendant’s luggage at about 10.44pm revealed some suspicious image. Upon search, no contraband was found in his shoulder bag but inside his luggage, some glue marks were observed and the emptied luggage was unusually heavy.
Upon further X-ray examination, it was discovered there was a concealed compartment inside it. A hole was drilled at the middle-left side of its back and some powder were found. Subsequent examination of the powder certified to be the drugs particularised in the charge.
Upon arrest and caution at about 11.15pm when he was asked in English if he understood the caution, he shook his head. Then upon showing him the Portuguese translation of the caution by using the Google translation application, he typed his reply which was translated as “I don’t understand. I don’t even take drugs.”
Inquiry continued with the assistance of the Google Translate application, he replied that he did not know what the white powder found in his luggage was. He said that a friend lent the luggage to him in Brazil for putting his personal belongings for the trip. He was going to take the luggage to the hotel and would bring it along with him during his stay in Hong Kong. He would not pass the luggage to anyone nor receive any reward for bringing the luggage to Hong Kong.
The following items were found and seized from him: Two boarding passes dated 6 and 8 June 2023; one Samsung mobile phone; US$400; Brazilian Real $229.55; and South African Rand $5.
During a preliminary inquiry in the morning of 9 June 2023, the defendant repeated that he would not hand over the luggage to anyone and no control delivery operation was conducted.
Upon examination, apart from the glue marks observed at the inner back of the luggage, one of the screws at the inner back was missing and some suturing marks were observed at the edges of the plastic board.
In a subsequent video-recorded interview on 9 June 2023, he remained silent to most of the questions posed to him, except he confirmed about the luggage brought by him to Hong Kong, the name tag with his name on the luggage, the cardboard being removed from the luggage, the two boarding passes with the name printed, and his mobile phone. He reiterated he did not have knowledge about the drugs found in the luggage.
Upon unlocking the defendant’s phone with the passcode which he voluntarily provided, two photos showing the hotel booking receipts at Regal Kowloon Hotel was found in the photo album, and some suspicious WhatsApp records translated from Portuguese to English showed messages were exchanged between one, Robert Andrews and him. There were 11 WhatsApp calls to the defendant from this Robert Andrews between 12.34pm to 1.54pm on 8 June 2023 which were all missed.
There were also other records with one Leandro on 2 June 2023 with a message from the defendant that he needed to go to that person’s house to pick up the luggage at 14.55.
There were other records with one, “Thomas 2”. Although the chat history between the defendant and this Thomas 2 were all cleared, some screen captures of their chat records were still kept in the photo album. One of their chat records found recorded that Thomas 2 sent messages at 11.48pm and 11.49pm on an unknown day on or before 23 May 2023 that:
“Don’t worry because you will be here by the 2nd without fail. It is because it’s other people from over there paying for the hotel. Then Said asked to put down 1 closed week.” “I’m going to book your return ticket for the 30th.”
And asking the defendant, “Did you do it?” at 13.10, in which he replied with a screen capture of the Salisbury YMCA of Hong Kong at 13.36. Thomas 2 responded by saying, “That’s it” at 13.36.
The defendant has only one arrival record in Hong Kong on 8 June 2023. Inquiry was made with Regal Kowloon Hotel confirming an online reservation was made under the name of the defendant on 4 June 2023 for a four-night stay at the hotel from 8 to 12 June 2023. But since the hotel fee was not settled, the reservation had been cancelled.
Inquiry with Qatar Airways revealed that apart from the two flights taken by the defendant from Brazil to Hong Kong, a booking of two flights returning to Brazil from Hong Kong on 14 June 2023 was also made under his name.
The estimated street value of all the cocaine involved was $430,416.
The defendant now admits and accepts that at all material times, he knowingly trafficked in the cocaine involved in this case by importing them into Hong Kong.
Mitigation
The defendant is a 39 years old Brazilian national with no criminal record in Hong Kong. In mitigation, Ms Crebbin said that the defendant grew up in a small rural village area in Brazil and completed his Secondary school education. He is the oldest of seven siblings. His mother passed away several years ago and his father died in tragic circumstances earlier this year when the defendant was incarcerated in Hong Kong.
I am also informed that before coming to Hong Kong, he worked hard in doing several jobs so he could provide support to two of his sisters and their family, and his brothers. He claimed to have worked part-time as an Uber driver, driving buses to take school children on excursions and owns party decoration business. He said he earned about $4,500 a month from all his work and that with his financial responsibilities, money was rather tight.
Ms Crebbin says that several months before the defendant came to Hong Kong, he was introduced by his friend, Thomas, to a man called, Robert Andrews. She submits that Thomas encouraged the defendant to travel to Hong Kong to check out his job prospects and even offered to lend the defendant a suitcase for the trip. Ms Crebbin submitted it was only very late, that is shortly before he left Brazil for Hong Kong that the defendant learnt that in fact, the suitcase lent to him by the person he trusted and considered a good friend, contained dangerous drugs.
The defendant still believing the job offer awaited him in Hong Kong and thinking it was too late to pull out, go through the trip to Hong Kong after having been offered a small reward for doing so.
Ms Crebbin said the defendant has been extremely remorseful for committing the offence and the defendant now realises how much this rash decision has ruined not only his life but the lives of his family and that it will potentially affect the people of Hong Kong and that he fully accepts he must now pay the price for this serious mistake.
I have had the letter written by the defendant translated to me in court by the interpreter and there are several translated letters from members of the family. They expressed the defendant is a very loving, caring person who worked hard to support his family. They all pleaded for a lenient sentence. Ms Crebbin has said everything she could for the defendant.
Sentencing Principles and Tariffs
Trafficking in dangerous drugs is a very serious offence. I will approach the sentencing by applying the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150.
Step one is to assess the gravity of the offence and to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned. The Court of Appeal has laid down guidelines for the appropriate sentence for people to traffic in dangerous drugs. These guidelines are based on the quantity of the narcotic involved. The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLR 370. 400 to 600 grammes of cocaine falls within the band of 15 to 20 years’ imprisonment.
Steps two to three involve an assessment of the offender’s role and culpability, and to identify where in the relevant band the defendant comes.
The role of an accused in aspects of trafficking can vary significantly. The effect of the tariffs stipulated in Lau Tak Ming apply to a defendant who was involved at the lowest level, namely, as a courier or storekeeper.
I accept Ms Crebbin’s submission that the defendant’s role comes within that of a courier and that the relevant sentencing band of 15 to 20 years’ imprisonment for the weight of the narcotic contents should be applied in this case. A strict arithmetical application of the weight-based starting point is one of 15 years and 8 months’ imprisonment. That is the appropriate range for someone who has been convicted after pleading not guilty.
Ms Crebbin rightly accepted there is an international element, given that it involves an importation of drugs to Hong Kong. The defendant brought dangerous drugs which was secreted in his luggage over the border into Hong Kong from Brazil.
In Lee Ming Ho at paragraphs 58 to 74, the Court of Appeal considered that while the international element warranted a higher starting point, it is now generally considered as a factor when assessing the role and culpability of the offender in order to identify the starting point for sentence. In addition, the court is still required to bear in mind the quantity of narcotics being introduced into Hong Kong which not only increases the supply of the particular dangerous drugs but causes greater harm to the community (paragraph 74).
I also note the observations made by the Court of Appeal in HKSAR v Raman Kapusamy [2024] 2 HKLRD 955 at paragraphs 72 to 73:
“72. Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical and mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime when he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.”
“73. Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.”
The court should be cautious of being too accepting of such an explanation in mitigation, unless supported by cogent and contemporaneous evidence and, where necessary, testimony at a Newton hearing.
According to the Summary of Facts, the authorities uncovered a trail of text messages, which revealed that the defendant was in communication with Leandro, Thomas 2 and Robert Andrews, who arranged for the defendant to make the journey from Brazil to Hong Kong with a suitcase containing dangerous drugs. And there was a lack of evidence in support of the defendant’s claim as to how he had been inveigled into bringing the handheld suitcase containing dangerous drugs into Hong Kong.
I made known my preliminary views to the defence, Ms Crebbin confirmed that the defendant would not be giving evidence in the witness box to support this claim nor ask for a Newton hearing, nor the fact that he was making a claim of duress.
Taking into account the defendant’s role as a courier, and the international element, I consider the appropriate starting point for this case is 16 years and 2 months.
Step four requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. There are no aggravating features in this case.
Fifth, I am required to have due regard to all mitigating factors. The Court of Appeal has said that all personal circumstances count very little in cases such as these. The strongest mitigating factor in this case is the defendant’s timely plea. I will give the full one-third discount to the defendant, and I reduce the overall starting point to a term of 10 years 9 months.
The context of the sixth and final step as explained by Lee Ming Ho at paragraph 85, was about totality where more than one count is involved or more than one aggravating feature is engaged. This was to ensure the sentence passed is fair, just and balanced in all the circumstances of the offence and the offender.
I am of the view that the ultimate sentence of 10 years and 9 months’ imprisonment is appropriate.
The final sentence I would impose on the defendant is one of 10 years 9 months’ imprisonment.