HKSAR v. NTSOLO MOLAHLEI VINCENT

HCCC 375/2018

[2019] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 375 OF 2018

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

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COURT: Background and the Facts

On 26 November 2018, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He was committed to this court for sentence.

Before me this morning, the defendant confirmed his plea and his acceptance of the Summary of Facts.

Briefly, on 10 March 2018, the defendant was detained for customs clearance on arrival at the Hong Kong International Airport from Johannesburg, South Africa. Upon searching the defendant’s suitcase, customs officers found six packets containing the drugs particularized in the count, that is, a total of 972 grammes of a mixture containing 657 grammes of heroin hydrochloride and 123 grammes of 6-monoacetylmorphine hydrochloride. The packets were then concealed in two plastic strips adhered along the frame of the suitcase.

The estimated retail value of the heroin was about HK$479,000 while that in respect of monoacetylmorphine hydrochloride could not be ascertained.

Subsequently, when interviewed by way of video-recording, the defendant said under caution that he was asked by Lucky to traffic drugs from Johannesburg to Guangzhou for a reward of US$2,000.

Mitigation and the Defendant’s Personal Background

The defendant was born in South Africa and is now aged 24. Reportedly, he was educated in South Africa and was unemployed since 2014. The defendant is not yet married but has got a son aged 3. He did not have any prior criminal conviction in Hong Kong.

In mitigation, Mr Surman told the court that the defendant did not only have a clear record in Hong Kong but also a clear record in South Africa where there is a high crime rate. Mr Surman, however, has no documentary proof to support this claim. In any event, in the face of serious offences like trafficking in dangerous drugs, the offender’s clear record is not any powerful mitigating factor.

Insofar as the defendant’s personal background is concerned, Mr Surman informed that he is a young man who was caught in the high youth unemployment rate in South Africa. He was therefore preyed on by others and he committed the present offence in the hope of saving money for raising his young son. Further, Mr Surman invited the court’s attention to the fact that the defendant did not put up any resistance when being stopped. He also did not try destroying anything or try turning the scene into a messy one, thus saving the manpower of the C&E officers. This, submitted by Mr Surman, is a factor which the court could take into account in affording a reduction in sentence on top of that given for his guilty plea.

Finally, Mr Surman provided the court with a letter written by Father Wotherspoon regarding the defendant’s contributions to his anti-drug campaign. I have read the defendant’s letter posted by Father Wotherspoon on the relevant website. The letter speaks of him being deceived to carry the suitcase in question and of him being in a state of shock when drugs were discovered. This clearly goes contrary to what he admitted before me as set out in the Summary of Facts.

Sentencing Considerations

The tariffs for trafficking in heroin were laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370 and in HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 600 and 1,200 grammes of heroin, a term of 20 to 23 years’ imprisonment is called for.

In the present case, although other than heroin, the drug of monoacetylmorphine hydrochloride was also found, but as observed in HKSAR v Kanfune Bashiri Rajabu, CACC 493 of 2012 (8 May 2013, unreported) and more recently in HKSAR v Mathews Rogers Raphael, CACC 41 of 2016 (21 April 2017, unreported), both substances can be termed as salts of esters of morphine. In other words, monoacetylmorphine hydrochloride is similar in potency as that of heroin hydrochloride. Before me, Mr Surman did not seek to suggest otherwise. Therefore, in my view, the Abdallah guidelines are applicable for both drugs, which had a total weight of 780 grammes.

Further in the case of Abdallah, the Court of Appeal stated that if an international element was involved in the trafficking, then for amounts above 1 kilogramme, an enhancement of not less than 2 years would be appropriate. In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal further observed that for an amount between 500 and 1,000 grammes of drugs, an enhancement of 1 year to 2 years would be appropriate.

Sentencing in this Case

Having considered the facts of this case and the amount of drugs involved, I take the view that an initial starting point of 21 years is appropriate. Moreover, as the defendant took the drugs into Hong Kong, there was certainly an international element regarding his trafficking activity. For that, I would enhance the starting point by a further 1½ years, making the overall starting point one of 22½ years.

The defendant pleaded guilty at the committal stage. He would receive a full one-third reduction for that. Other than his plea, there is nothing in this case which would warrant any further reduction in sentence.

Although the defendant did not put up any resistance and did not attempt destroying any exhibits at the scene, I do not regard these as constituting any strong mitigating factors calling for a reduction in sentence. If the defendant had done so, he might have faced additional charges, not just the present offence of trafficking in dangerous drugs.

Further, in relation to his age and personal circumstances, our courts have repeatedly pointed out that unless there are exceptional matters, those should not normally attract any sentence reduction when one commits the serious offence of trafficking in a dangerous drug.

Finally in HKSAR v Fundi Furaha Giles, CACC 82 of 2017 (1 February 2019, unreported), the Court of Appeal pointed out at paragraph 22 that:

“It is clear, following Kilima, that a sentencing court does have a discretion to award a ‘small additional’ discount (per Lunn VP, at paragraph 67), or a ‘token’ discount (per Macrae VP, at paragraphs 91 and 92), for making significant contribution to Father Wotherspoon’s campaign. The discount afforded for this factor in the exercise of a judge’s discretion should be no more than 3 months. However, we wish to emphasize here that the court did not mean an automatic 3 months’ discount whenever this factor is raised in mitigation. That must be the limit of the discount depending on the extent and circumstances on the defendant’s contribution as determined by the judge, and this court will not lightly interfere with the exercise of the judge’s discretion in this regard. That means that there will be cases when a judge considers, in the due exercise of his discretion, that no additional discount is appropriate for this factor.”

In this case, as I have mentioned, the defendant appeared to suggest in his letter to Father Wotherspoon that he was completely ignorant of the presence of drugs in the suitcase. That is not what he admitted before me. In the circumstances, I do not consider it appropriate to exercise my discretion in giving him any sentence reduction in his said contribution to Father Wotherspoon’s campaign.

22½ years reduced by one-third is 15 years’ imprisonment. The defendant is therefore to serve a term of 15 years for this offence.