HKSAR v. CHIBULU CATHERINE

HCCC 340/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 340 OF 2016

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

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COURT: The defendant has pleaded guilty in the Magistrates Court to one count of trafficking in a dangerous drug, namely 479 grammes of a solid containing 62.1 grammes of cocaine.

The facts to which the defendant has admitted to, show that on 1 March last year, she arrived from Johannesburg and on a search of her person, a package was found in her underwear. She was subsequently sent to the North Lantau Hospital. Subsequently, she discharged a further 47 packets.

All 48 packets were later examined by the Government Chemist and found to contain the drugs named in the indictment. The estimated retail value of the drugs is HK$511,572.

Under caution, the defendant informed the Customs Officers that she came to Hong Kong to buy hair products and she had been given the drugs to carry from South Africa. She was to receive a monetary reward but the amount had not been confirmed. Subsequently, in a subsequent interview, the defendant admitted that she has swallowed 40 pellets and kept one in her underwear and all these were given to her by a person called Sam in Zambia. She knew the contents were illegal and she said that she was to receive US$3,000 after she had passed the stuff to the person who was to contact her in Hong Kong.

The defendant is aged 43 and has a clear record in Hong Kong. She is a Zambian national. According to Ms Crebbin, who said everything that she could possibly say on her behalf in mitigation, the defendant has elderly parents and four daughters, aged between 5 to 21. She is divorced and has been the sole breadwinner of the family, being a hairdresser in Zambia earning approximately US$100 a month. The defendant is fully remorseful and realises how stupid she had been to accept this temptation of earning easy money in order to pay for the education of her children.

The defendant has HIV and is being treated whilst she is in prison and perhaps, in a way, Hong Kong is one of the better places for her to get treatment in. I have had sight of the medical report and it seems that there has been no gross abnormality in her organs and she is being treated for the minor ailments she is feeling. So no doubt the Correctional Services Department will be keeping tabs on that.

The other mitigating factor is the fact that she has involved herself quite actively in Father Wotherspoon’s campaign. I had been calling for years for the people in Africa to be educated as to what they could expect if they carry drugs to Hong Kong. Father Wotherspoon, who is a familiar face in my court, has managed to successfully launch this campaign to educate the citizens in Africa that coming to Hong Kong with drugs is a real risk which would merit, if they are caught, a long time in prison. This is the only way to educate and stop these evil drug traffickers from using innocent people to carry on their nefarious trade.

I have a letter from Father Wotherspoon confirming that the defendant has assisted most actively in his campaign and also had been engaging her daughters and sister and friends in Zambia and South Africa to support the campaign. Apparently, according to Father Wotherspoon, he is going to go to Zambia and South Africa next year and that the defendant has been assisting him in planning his Zambian trip, in providing useful media and other contacts.

Father Wotherspoon has also drawn the attention of this court to the fact that some of my learned brothers in the High Court have recognised the participation of particular defendants in this sort of campaign as a factor to be recognised in sentencing.

I have no doubt at all that this campaign is working and the more people are educated about this, the less attractive the monetary reward offered would become; particularly, in most cases, the monetary rewards are never given. So in effect, all these defendants who carry drugs to Hong Kong actually would go home without the money that they have risked their lives for. And it is a risk because of the risk of the packages being broken inside the body and it would also create a very dangerous situation for the health of the carrier.

As Ms Crebbin has very rightly pointed out, the sentencing recommendation by the Court of Appeal in relation to cocaine follows the guidelines recommended for heroin in the case of Lau Tak Ming, and for trafficking in between 50 to 200 grammes would merit a sentence of 8 to 12 years’ imprisonment after trial.

So in this case, for this amount of 62.1 grammes of cocaine, it would merit somewhere between 8 to 8½ years as a starting point. Taking into account all the relevant facts of this case, I consider an appropriate starting point would be 8 years, and giving the defendant the full one-third off, the sentence will be reduced to 5 years and 4 months.

Now, of course, as Ms Crebbin recognised, the enhancement of the sentence is necessary because of the international element and as she correctly submitted, in the case of HKSAR v Chung Ping Kun, the Court of Appeal has suggested that for trafficking in up to 250 grammes, the enhancement would be 6 months, or no more than 6 months.

The fact of the matter is that I could enhance the sentence by 6 months but I do recognise, however, as I have said, that the defendant has assisted in Father Wotherspoon’s campaign, so I would reduce the enhancement to one of 4 months.

So the defendant goes to prison for 5 years and 8 months.