HKSAR v. MABASA TSHILIDZI

HCCC 405/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 405 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 700 millilitres of a liquid containing 409 grammes of cocaine. She has been committed to this court for sentencing.

The facts are all too common these days. The defendant arrived in Hong Kong on a flight from Dubai on 8 March 2016. She was intercepted at the Arrival Hall, nothing was found on her. She was taken to the North Lantau Hospital for medical examination where foreign objects were observed inside her abdomen. She later discharged about 25 plastic bags of liquefied drugs.

She was subsequently interviewed after having been arrested and she then informed the police that she is South African and that the drugs were cocaine mixed with liquid. There was this person, A Nigerian male, called Boss, who recruited her for drug trafficking in South Africa and later arranged for her to travel to Brazil where she swallowed these plastic bags of liquefied cocaine. She was promised that she would receive a reward of 20,000 South African rand.

She then took a flight to Hong Kong from Brazil via Dubai. She said that upon arrival in Hong Kong, this Nigerian male called Boss told her to wait for further instructions. She said that the money that was found on her was her own money which she had brought to Hong Kong to spend. Of the two phones seized from her, one a Nokia and one a BlackBerry, she said that she had put the phone numbers of Boss and the friend who introduced her to Boss in her BlackBerry phone.

The drugs were later examined by the government chemist and also it was determined that the street value of the dangerous drug was about $1,041,300.

The defendant is aged 21 and has a clear record in Hong Kong. I am told by Mr Davies that she also has a clear record in South Africa and I would accept his submission on that. The background of the defendant, there is nothing unusual in her background. She committed this offence basically because she was lured and tempted by the money that was being offered to her. She said she is the sole breadwinner of the family. She has to take care of her mother, who is not well, and two younger brothers, and that from her village, when she was working, she would have to travel some five hours to work every day. So the temptation of the reward money was indeed very attractive.

As with all the drug trafficking couriers that have come before me from all over the world, it is because of the temptation of money. The bosses in these drug trafficking operations know this and that is why the courts in Hong Kong have to take a very serious view of these offences. We are constantly fighting a battle. I have said over and over again, our discipline forces are stretched to the limit trying to minimise the importation of drugs into Hong Kong and the destruction it wreaks on our society.

The sentence, as Mr Davies correctly pointed out, there is a recommendation from the Court of Appeal as to the level of sentences for trafficking in cocaine. This was done in 1990 in the case of Lau Tak Ming and in 1994 in the Pedro Nel Rojas case where it says that for trafficking in cocaine, the sentence would be similar to the levels as recommended in the Lau Tak Ming case. So for trafficking in 200 to 400 grammes of cocaine, it would merit a starting point sentence of 12 to 15 years. For trafficking between 400 to 600 would merit a starting point sentence of 15 to 20 years.

The mitigation in this case really is the fact that the defendant has recognised her guilt and has pleaded guilty at the earliest opportunity which is a reflection of her remorse. I also have read the letters submitted by Father Wotherspoon about the defendant helping his campaign to educate the people in South Africa about the sentencing policy in Hong Kong, and thus hopefully would stop the flow of people willing to engage in this activity. It is no doubt a worthy exercise and it is encouraging to note that the defendant will use her time in prison usefully, constructively, and she is studying, I am told, psychology.

It is a worthwhile cause that Father Wotherspoon is involved in. The fact that most of the defendants appearing before me have participated in his campaign shows that they themselves do realise that this sort of education would be beneficial to their respective countries. However, it is a sad fact that, in this case, the defendant has to go to prison for quite some time.

Having considered everything that I have said above, I determine that the starting point sentence would be between 15 to 15½ years. Taking into account her clear record, her remorse and the things she has done subsequent to her arrest, whilst in custody, in helping the campaign, I would adopt the lower starting point of 15 years. I would enhance it by 1 year because of the international element.

So the fact is, as I said, for the mitigating factor in this case, she would get the full one-third off and therefore reducing the sentence to one of 10 years and 8 months.