HKSAR v. Martins Hais Jessica

HCCC 354/2025

[2026] HKCFI 3286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 354 OF 2025

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Now you have pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of the charge are that on the 22 September 2024, at Hong Kong International Airport, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 936 grammes of a solid containing 769 grammes of cocaine.

Agreed Facts

The charge arises from these facts.

On 22 September 2024, the defendant arrived at the Hong Kong International Airport on a flight from São Paulo, Brazil via Paris, France and Zurich, Switzerland. At about 5.33 pm on the same day, she was intercepted by Chief Customs Officer Yeung Wai-hang (“PW1”) at the “Nothing to Declare” Channel of Customs Arrival Hall A. At the material time, the defendant was carrying one suitcase and one shoulder bag.

Upon interception, the defendant was asked to show her passport and boarding pass. When asked where she came from, she replied that she came from Brazil. A search of her luggage and a body search revealed no contraband.

Suspecting that the defendant had concealed dangerous drugs within her body, Customs officers took her to the North Lantau Hospital for medical examination. Dr Ho Sze-man confirmed the presence of foreign objects concealed inside the defendant’s body cavity. At about 9.25 pm on the same day, Customs Officer 17338 arrested the defendant for trafficking in a dangerous drug.

The defendant was transferred to Queen Elizabeth Hospital. Between 23 and 27 September 2024, she discharged a total of 106 pellets of cocaine.

Government Chemists confirmed that the 106 pellets contained a total of 936 grammes of a solid containing 769 grammes of cocaine. The estimated street value of the seized cocaine was HK$773,136.

The defendant was interviewed under caution on 23 September 2024 in the presence of a Portuguese interpreter. Under caution, the defendant made full admissions. She stated that she had no savings and owed 5,000 Brazilian Reais to a loan shark. She was under financial pressure to pay off the debts and provide for her family. She was divorced with four children. A friend referred her to a Brazilian known as “Cocao”, who suggested she swallow pellets and travel. On 19 September 2024, at an arranged house in Mauá, Brazil, she was given pellets to swallow. Another female present told the defendant the pellets contained drugs. On 22 September 2024, Cocao booked her transport to the airport and she was given a flight ticket and a hotel reservation. After arriving at the hotel in Paris, the defendant was told to go to Hong Kong. The defendant identified Cocao by phone number and an Algerian contact saved as “Akajiofor” in her mobile phone.

With the defendant’s consent and on the strength of the search warrant, the contents of her mobile phone were screened. Messages between the defendant and three contacts, Cocao, Akajiofor and Angel, were found, confirming the arrangements for her travel and the monitoring of her movements throughout the journey.

The defendant now accepts and admits that, at the material times she knowingly possessed all the dangerous drugs seized for the purpose of unlawful trafficking.

Background and Mitigation

The defendant is a Brazilian national, born in 1991, and now aged 35. She was aged 33 at the time of her offence. She is divorced and has four sons aged 14, 11, 4 and 1 respectively. Her two elder sons are cared for by her ex‑husband and her two younger sons by her sister.

The defendant completed secondary education, including a veterinary course, and two years of a three-year university degree in logistics. At the time of her arrest, she was unemployed, having previously worked part-time as a hairdresser and as a clerk in a logistics company.

The defendant has a clear criminal record.

In mitigation, counsel for the defendant submitted that the defendant was a courier at the lowest level of the trafficking hierarchy. Counsel accepted that the international element is a relevant consideration in assessing the starting point, consistent with the case of HKSAR v Lee Ming Ho. Counsel submitted that the defendant cooperated fully with the authorities, providing the identities and contact details of her recruiters and consenting to the examination of her mobile phone. Counsel submitted that the defendant entered a timely guilty plea at the earliest opportunity.

Counsel further submitted that the defendant’s decision to commit the offence arose from dire financial circumstances. She owed 5,000 Brazilian Reais to loan sharks and was suffering from postpartum depression following a traumatic birth. A neighbour approached her and offered 18,000 Brazilian Reais to transfer drugs. The defendant accepted the offer out of desperation to provide for her children.

Letters in mitigation from the defendant, her ex-husband and her sister have been placed before and hence considered by this court.

During her period in custody, the defendant completed an English language course through the Chinese University of Hong Kong and six unit certificates through the Emmaus Correspondence School, totalling five units of study.

Sentencing Considerations

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, I now consider the six-steps as set out in the case of Herry Jane Yusuph.

First step, the relevant guideline for trafficking in cocaine is set out in the case of HKSAR v Huang Ruifang, which provides that trafficking in 500 to 1,500 grammes of cocaine attracts a starting-point range of 16 to 20 years’ imprisonment after trial.

The quantity involved in the present case is 769 grammes of cocaine. On a mathematical basis, the notional starting point is 204 months, that is 17 years’ imprisonment.

Second step, I accept that on the facts, the defendant was acting as a mere courier who was recruited, directed and monitored by the others. She swallowed 106 pellets of cocaine and transported them internally from Brazil via Paris and Zurich to Hong Kong. There is no evidence to indicate that her role went beyond that of a courier. As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are devised for those at the bottom of the trafficking hierarchy, namely, the courier or storekeeper. As such, there is no enhancement on account of the defendant’s role.

As for the international element, in the decision of Lee Ming Ho, the Court of Appeal stated that the international element, which was formerly treated as a separate and individual aggravating factor, should now be considered as a factor when assessing the role and/or culpability of the offender in identifying the appropriate starting point for sentence.

In HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, the Court of Appeal citing Lee Ming Ho further held that the international element is merely a factor or circumstance in the commission of the offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence. At paragraph 65, the Court of Appeal drew a distinction between “the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of dangerous drugs, which may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of punishment that will be meted out when he is caught” and the courier from Hong Kong who journeys abroad to collect drugs.

The defendant falls squarely within the former category. She is a Brazilian national who arrived in Hong Kong for the first time. She did not even know that Hong Kong was her destination until she reached Paris. She was recruited in circumstances of severe financial desperation, directed and monitored throughout, and promised a sum of 18,000 Brazilian Reais. She agreed to take this course due predominantly to the dire situation of her sons and the family circumstances.

Taking into account the nature of the international element in this case and the role played by the defendant, I consider an enhancement of 9 months’ imprisonment to be appropriate, resulting in a revised notional starting point of 213 months, that is 17 years and 9 months’ imprisonment.

Third step, considering the overall role and culpability of the defendant, including the international element. I find that starting point of 17 years and 9 months’ imprisonment is appropriate.

Fourth step, I find no aggravating factors beyond those inherent in the offence itself and those already reflected in the assessment of the role and culpability.

Fifth step, the defendant pleaded guilty at the earliest opportunity, for which she is entitled to the full one-third discount. The starting point of 213 months is therefore reduced by one-third to 142 months.

As for cooperation, the defendant cooperated fully with the authorities throughout the investigation. She made frank admissions under caution, disclosed the identities and contact details of her recruiters, and consented to the examination of her mobile phone, which revealed communications confirming the trafficking arrangements.

As the Court of Appeal observed in HKSAR v Jardin Rodela Maningas, CACC 278/2011 at paragraph 16, it is important as a matter of principle to encourage arrested persons to assist in this way. I am satisfied that the defendant’s cooperation was genuine and full. I am minded to reduce the sentence by 3 months on this account, resulting in 139 months.

The defendant has a clear criminal record. I will exercise my discretion to reduce the sentence by a further 3 months, resulting in 136 months.

The defendant has made productive use of her time in custody, completed an English language course through the Chinese University of Hong Kong, and six unit certificates totalling five units of study through the Emmaus Correspondence School. I will therefore exercise my discretion to reduce the sentence by a further 2 months, resulting in 134 months.

As for the personal and family circumstances of the defendant, including her childhood trauma, her history of domestic violence, her postpartum depression, and the impact of her incarceration on her four young sons, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. While I have sympathy for the defendant’s personal circumstances, they do not warrant any further reduction.

In fact, I did consider these factors in assessing the role and culpability of the defendant as a drug mule in the context of my consideration of the international element.

Sixth step, after the enhancement and deductions as stated, the sentence is 134 months’ imprisonment, that is 11 years and 2 months. I have stood back and considered the sentence as a whole. However, having regard to the seriousness of the offence and the defendant’s role and culpability, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.

Defendant, you are therefore sentenced to 134 months’ imprisonment, that is 11 years and 2 months’ imprisonment for the offence.