HKSAR v. Hussain Farid Oluwamayomikum
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DCCC 1257/2025 [2026] HKDC 1952 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1257 OF 2025 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.Upon the defendant’s guilty plea and the facts that he has admitted, he is convicted of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Admitted facts 2.On 2 March 2025, the defendant arrived at the Hong Kong International Airport by Flight FD504 from Thailand. 3.At about 8:18 p.m. on the same day, Chief Customs Officer Chiu Sung-hau intercepted the defendant at Customs Arrival Hall B, Passenger Terminal 1 of the Airport, and requested the defendant to open his suitcase (“the Suitcase”) and his personal belongings for inspection. 4.After Customs Officer 17338 had scanned the Suitcase with X-ray, he asked the defendant whether the Suitcase belonged to him. The defendant replied in the affirmative. 5.Customs Officer 17338 then opened the Suitcase for investigation in the presence of the defendant. A total of 31 vacuum sealed packets were found inside the Suitcase, and these packets were containing a total of 15.491 kilogrammes of cannabis in herbal form (“the Drugs”), as subsequently confirmed by a government chemist. 6.Customs Officer 17338 arrested the defendant for the offence of trafficking in a dangerous drug. Under caution, the defendant stated inter alia that he brought the Suitcase in the United Kingdom (“UK”) and that it was for his own use. He said that his destination was Southampton. 7.Between 1:59 p.m. and 2:19 p.m. on 3 March 2025, Customs Inspector Chan Wai-sum and Customs Officer 12215 conducted a video-recorded interview with the defendant. Under caution, the defendant stated inter alia the following:
8.Upon clarification, Mr. Dick Wong, learned counsel for the defendant, informs this Court that the defendant will not rely upon what he had said under caution that he brought the Suitcase in UK. Mr. Wong also confirms that the defendant knew that he was carrying the Drugs into Hong Kong as he had been so informed of the contents of the Suitcase in subsequent messages via Telegram. 9.According to the data on the average retail prices of cannabis in herbal form as in March 2025, the estimated street value of the Drugs seized was HK$2,602,488. 10.The defendant admits that on 2 March 2025, he unlawfully trafficked in a dangerous drug, namely, 15.491 kilogrammes of cannabis in herbal form in Hong Kong. Criminal record 11.The defendant has a clear criminal record in Hong Kong. Personal and family background 12.The defendant is now 21 years old. He was born on 2 December 2004 in Dublin, Ireland. He is single. His family members include his parents and elder sister. 13.The defendant’s father is now 60 years old. He is a national of Nigeria. For the last 34 years, he served the Nigerian Ports Authority and worked in different port locations in Nigeria and in its Corporate Headquarters in Marina, Lagos, as a junior officer and then a senior officer at the top management level to provide for his family. The defendant grew up with his mother and elder sister in Essex, UK. The defendant’s mother is now 49 years old. She is an investment banker. His elder sister is now 26 years old. His father returned to UK only once or twice a year to visit his family. 14.The defendant graduated from high school in 2020. He worked as a chef in 2021. Since 2023, he started working as a dog breeder in London, and he remained in the same job, earning ￡2,000 a month, at the time when he started his holiday in Thailand. Because of this job, the defendant has lived alone in London away from his family members since 2023. 15.According to Mr. Wong, the defendant started his holiday in Thailand in mid-February about 2 weeks prior to his arrest in Hong Kong. When he entered Hong Kong, his intention was to catch another flight scheduled to depart Hong Kong one to two hours after his arrival for Amsterdam, and he would take another flight from Amsterdam to go back to UK. Mitigation 16.Mr. Dick Wong refers to the 6-step approach that a sentencing court shall follow when sentencing a defendant for drug trafficking offences as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph[1]. He goes through these 6 steps in his detailed written submissions. 17.Step one is identification of the relevant sentencing guideline band applicable to trafficking in 15.491 kilogrammes of cannabis in herbal form. Mr. Wong refers to the sentencing guideline laid down by the Court of Appeal in HKSAR v Nguyen Thang Loi[2], which provides inter alia that for trafficking over 15,000 grammes and up to 45,000 grammes of cannabis in herbal form, a sentence of 66 to 96 months’ imprisonment may be imposed. 18.Step two is assessment of the role and culpability of the defendant in the offence. Mr. Wong submits that the defendant was just a courier at the lowest level of the drug trafficking hierarchy. According to Mr. Wong, when the defendant was on holiday in Thailand, he received a message via Telegram from a person who sold him cannabis in UK before. That person recruited the defendant to deliver the cannabis and promised to pay an unspecified sum of money to the defendant. Mr. Wong submits that the defendant was merely an ad hoc courier who did not initiate the venture, and that he did not negotiate any share of proceeds, or exercise any control over the operation. Mr. Wong points out that the defendant was not even given the Drugs or the Suitcase to prepare, and that he only collected the Suitcase at a location chosen and directed by others, even though the Suitcase was larger than what had been represented to him. 19.Mr. Wong stresses that the defendant’s assigned function was confined to collecting a suitcase in Thailand and carrying it through Hong Kong, and that the Agreed facts do not disclose that the defendant had taken up a wider operational role. Mr. Wong says that there is no evidence that the defendant had procured, packed, concealed or owned the drugs, selected the route, arranged the travel, or recruited or directed any other participants. There is also no evidence that the defendant had any connection with the drug trade in Hong Kong, and he had no equipment for packaging or distributing drugs. The defendant’s destination was Southampton. In short, the defendant was engaged only to transport the Suitcase, and he was not involved in any managerial, proprietary or distributive responsibility. 20.Step three is identification where in the relevant band of the sentencing guideline that the defendant falls into. Mr. Wong submits that since the quantity of cannabis in this case had exceeded the lower threshold of the sentence band just marginally, a mathematical application of the guideline indicates a starting point of 66 months’ imprisonment, which needs not be adjusted upward since the defendant’s role and culpability were limited only to those of an ad hoc courier. 21.Step four requires a consideration of the aggravating factors if any in the case. Mr. Wong accepts that there was an “international element” in the offence committed by the defendant since he carried the Drugs across the border into Hong Kong, but points out that, according to the Court of Appeal in HKSAR v Lee Ming Ho[3], the fact that an offender has brought, or conspired to bring, or facilitated the bringing of, dangerous drugs over the border into Hong Kong is and ought to be regarded and treated as part of the offender’s role and culpability rather than an additional aggravating factor susceptible of a fixed arithmetical increase of the starting point of the sentence. Mr. Wong also refers to HKSAR v Ko Wai-shing[4] in which the Court of Appeal cautioned that the label “international element” must not obscure the facts or the extent of the offender’s involvement in each case. Mr. Wong submits that since the defendant had not devised the journey, and had no influence over the route, the preparation or disposal of the consignment, he should not be attributed with the culpability of those people who had organized the importation of the Drugs, and that the “international element” should be recognized by no more than a 3-month increase in the sentence. 22.Mr. Wong therefore submits that the notional sentence after trial should be 69 months’ imprisonment. 23.Step five is to consider all mitigating factors. Mr. Wong outlines the personal and family background of the defendant. He produces a mitigation letter written by the defendant’s father who stresses that the defendant grew up without adequate parental guidance since he was working in Nigeria and the defendant’s mother had to work hard as an investment banker to raise the two children. The defendant’s father says that upon the release of the defendant, he intends to supervise the defendant in Nigeria and assist him to resume his education and secure lawful employment. 24.Mr. Wong also cites the judgment of the Court of Appeal in Secretary for Justice v Tang King Wa[5] and submits that the defendant’s relatively young age at the time of the offence is a mitigating factor. 25.Mr. Wong submits that the defendant should be given the full one-third discount of his sentence because of his timely guilty plea. He asks for a measured degree of mercy to be extended to the defendant who was a young and naïve first offender who has pleaded guilty, expressed remorse and retains genuine prospects of reform with family support. 26.Step 6 requires the Court to stand back and look at the overall sentence to be imposed to ensure that it is fair, just and balanced in all circumstances of the offence and the offender. Mr. Wong submits that a sentence of 46 months’ imprisonment, which is a one-third discount of a sentence with a starting point of 69 months’ imprisonment, is a fair, just and balanced sentence. 27.Mr. Wong also produces a mitigation letter written by the defendant who says that he has learned a lesson and that he will extend his knowledge so that he will not let the same circumstances to recur. He asks for a chance “on a life that has yet to fully blossom”. Reasons for sentence 28.I have carefully considered the facts of this case, the plea in mitigation by Mr. Wong, and the relevant sentencing guidelines and precedents. Despite the defendant’s guilty plea, his clear record and his age of the time of the offence, the only appropriate sentencing option in this case is one of imprisonment. Mr. Wong does not argue otherwise, he just tries his best to secure a sentence as lenient as possible. 29.As to the length of the term of imprisonment, Mr. Wong has rightly submitted that the 6-step approach stated in the case of Herry Jane Yusuph has to be followed. 30.As to Step one, Mr. Wong has correctly referred to the sentencing guideline laid down by the Court of Appeal for trafficking in cannabis in herbal form in the case of Nguyen Thang Loi, which provides inter alia that for trafficking over 15,000 grammes and up to 45,000 grammes of this drug, a sentence of 66 to 96 months’ imprisonment may be imposed. Since the defendant had trafficked in 15.491 kilogrammes of cannabis in herbal form, this sentence band is applicable to this case. 31.Step two requires the Court to assess the role and culpability of the defendant in the offence charged. It is because the guidelines are set by the Court of Appeal for the courier or storekeeper who is convicted of the drug trafficking offences, and a courier or storekeeper is regarded as playing the role at the lowest level of the drug hierarchy with the least culpability, as opposed to anyone who performs a higher role with greater culpability such as those who are “the actual or direct trafficker”, “the manager or organizer”, or “the international operator or financial controller” as referred to in the case of Herry Jane Yusuph. 32.On the facts admitted by the defendant, there is no doubt that the defendant was delivering the Drugs for the person who recruited him, but he was not an ordinary courier. He was an international courier who had imported the Drugs across the border from Thailand into Hong Kong, with the view of exporting the drugs out of Hong Kong into Southampton, UK, pursuant to his agreement with the person who recruited him to deliver the Drugs. It is clear that his recruiter was an international drug trafficker, or an agent of an international drug trafficker, who had the capacity and means to obtain the Drugs in Thailand and arranged for the Drugs to be delivered across the continents from Asia to Europe, and that the defendant had agreed to participate in this international shipment of the Drugs and act as the frontline man in its delivery for reward. On the other hand, I agree with Mr. Wong that there is no evidence to prove or suggest that the defendant had been involved in organizing or overseeing such an international crime, or that he had undertaken any managerial, proprietary or distributive responsibility regarding the Drugs. 33.If the defendant were an ordinary courier, according to the sentencing guideline and upon a pure mathematical calculation, the sentence to be imposed on him should have a starting point of imprisonment for 66.491 months[6], which may be rounded down to imprisonment for 66 months. However, the defendant was an international courier, and he must also be sentenced for the “international element” of the offence that he had committed. 34.Mr. Wong has rightly reminded this Court of the judgment of the Court of Appeal in Lee Ming Ho that this international element is relevant to the assessment of the defendant’s role and culpability in the offence rather than as a factor in aggravation of the offence. He also stresses that there may be different degrees of culpability even if the label of courier can be properly applied to different persons who are involved in different drug trafficking activities. 35.In considering the defendant’s sentence, I shall take into account the international element to assess the defendant’s role and culpability in the offence, rather than treating it as an aggravating factor, even though it is clear to me that so long as there is no double counting, the end result by either route will result in the same sentence. 36.There is no doubt that the defendant has to be punished for this international element even though, according to Mr. Wong, the defendant was transiting Hong Kong for Amsterdam and eventually UK when he was intercepted at the Airport. As it was stated by Zervos, JA, in HKSAR v Fong Yau Heung[7] that,
37.Mr. Wong submits that adjusting the mathematical starting point upward by 3 months which represented a 4.5% increase of the sentence will be sufficient to reflect the international element. 38.The Court of Appeal has reminded the lower sentencing courts that the level of enhancement should be just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent: HKSAR v Choi Chun Wo[8]. In that case, the appellant brought 5.26 grammes of “ice” from mainland China into Hong Kong, which attracted a starting point of imprisonment for 61 months. The Court of Appeal held that an enhancement of 3 months’ imprisonment would be appropriate. 39.In the present case, Mr. Wong’s suggested enhancement of 3 months’ imprisonment is within the accepted range. I accept Mr. Wong’s submission, and adjust the mathematical starting point upward by 3 months to imprisonment for 69 months. 40.In his written submissions, Mr. Wong also asks the Court to consider the “relatively young age” of the defendant as a mitigating factor, citing the case of Tang King Wa. He argues that the evidence reveals marked naivete and immature judgment on the part of the defendant. In my view, whether or not the defendant was naïve and immature at the time of the offence is relevant to the assessment of his role and culpability in the offence rather than a mitigating factor, though either route may bring about the same result in the ultimate sentence. 41.Having considered the matter anxiously and carefully, I do not agree that the defendant’s culpability in the offence was reduced because of his age. At the time of the offence, the defendant was 20 years and 4 months’ old. He was certainly not within the group of “extreme youth”. More importantly, the Court of Appeal in Tang King Wa has cited with approval the observation of Stock JA in HKSAR v Law Ka Kit[9] that the degree of age that may impact upon sentence, if at all, must depend upon the case and on the offender. One offender aged 14 may be considerably more mature and hardened than the next of the same age. An offender aged 14 may in some cases be more of a leader and more cunning and street wise than an accomplice aged 17 years. 42.In this case, the defendant had finished his education in 2020 up to the high school level. He had already started working in the society for 5 years since 2021. He was a person with social experience. He was mature enough to live alone in London where he worked as a dog breeder since 2023. According to his mitigation letter, he always had an entrepreneur mindset, and he handled negotiations with customers in his dog breeding work. Furthermore, he was able to travel to Thailand and lived in a foreign country on his own for at least 14 days. He was also old enough to decide that he would smoke cannabis in London even though it was a criminal offence there. All these are clear evidence that he was competent in his intellectual capacity and that he was a mature person despite his age. 43.Additionally, there is no suggestion that the person who recruited the defendant to deliver the Drugs had any special relationship with him, other than that of a cannabis seller and customer. There is certainly no evidence that the defendant had been manipulated or tricked into committing the offence. When the defendant was recruited to deliver the Drugs, he did not meet the recruiter face-to-face and he was far away in Thailand, and if the defendant had turned down the request of his recruiter, there was nothing that the recruiter could have done about it. 44.Besides, it is difficult to believe that his recruiter would have been willing to entrust the defendant with the Drugs which was worth more than HK$2.6 million if the defendant had shown to the recruiter that he had any sign of reluctance to take up the job. I am sure that the defendant committed the offence for the purpose of earning money. He claimed that the amount of monetary reward had not been specified. I have great reservation on the truthfulness of this claim, but even if it were true, it does not lessen the role and culpability of the defendant in the offence. In summary, I reject the submission that the defendant should be regarded as less culpable in the offence because of his relatively young age, or that it is a mitigating factor in his favour, bearing in mind that drug trafficking has always been regarded as a very serious offence, and that the personal circumstances of a defendant have little mitigating effect. It seems also that Mr. Wong does not press hard for a reduction of the defendant’s sentence on the ground of his age. Mr. Wong has not suggested how much of the sentence should be reduced on this ground. 45.Other than the international element, I find that there is no other factor that increases the defendant’s culpability in the offence, or that may be regarded as an aggravating factor. 46.For reasons aforesaid, I rule that the appropriate notional sentence after trial is imprisonment for 69 months. 47.As to the mitigating factors, the defendant is entitled to have his sentence discounted by one-third because of his timely guilty plea. 48.I have considered carefully the defendant’s personal and family background and the mitigation letters written by the defendant and his father. It might well be that the defendant did not grow up with the benefit of proper parental guidance, but this factor only explains why the defendant did what he had done, but it does not mitigate the offence. The fact that the defendant’s father has a plan for the defendant’s rehabilitation in Nigeria may assist the defendant in his rehabilitation, but when it comes to sentencing a defendant guilty of a drug trafficking offence, the predominant sentencing purpose is deterrence rather than rehabilitation. In short, other than the defendant’s guilty plea, there is no other factor that operates to reduce the defendant’s sentence further. 49.Lastly, it appears to me that a sentence of 46 months’ imprisonment is a fair, just and balanced sentence in all circumstances of the offence and of the offender. 50.For these reasons, the defendant is sentenced to imprisonment for 46 months.
[1] CACC93/2019, [2020] HKCA 974, [2021] 1 HKLRD 290 [2] CACC145 & 217/2019, [2023] HKCA 103, [2023] 1 HKLRD 1329 [3] HKSAR v Lee Ming Ho (李名豪), CACC130/2018, [2024] HKCA 150, [2024] 1 HKLRD 1186, paragraphs 52 to 56. [4] HKSAR v Ko Wai Shing (高威誠), CACC7/2020, [2021] HKCA 1803, [2021] 5 HKLRD 724, paragraphs 45 to 46. [5] Secretary for Justice v Tang King Wa (鄧景樺), CAAR4/2022, [2023] HKCA 646, [2023] 2 HKLRD 1440, paragraphs 41 to 43. [6] 66 months + [(15,491 – 15,000 grammes) x (96 – 66 months) ÷ (45,000 – 15,000 grammes)] = 66.491 months. [7] CACC173/2020, [2022] HKCA 258, [2022] 2 HKLRD 99 [8] HKSAR v Choi Chun Wo (蔡進和), CACC273/2017, [2018] HKCA 384, [2018] 5 HKLRD 717, paragraph 26. [9] CACC97/2001, [2003] 2 HKC 178, paragraph 31 |
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