HKSAR v. MARIA CORNELIA DUVENHAGE

DCCC568/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 568 OF 2008

----------------------

----------------------

--------------------------------------

Reasons for Sentence

--------------------------------------

1.  Defendant, you are convicted after trial of a single offence of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance. 

2.  The facts themselves have been dealt with at length in my verdict.  Suffice it to say that you were caught bringing into Hong Kong 20.17 kilograms of herbal cannabis.  That was from South Africa. 

3.  You are of hitherto clear record.  I do note that this is a retrial and I have considered the probation officer’s background report and the medical report that was submitted to the learned judge at the last trial. 

4.  Mr Whitehouse on your behalf has entered mitigation.  He tells me you are 59 years of age with hitherto clear record and not a habitual traveller.  That supports the fact that this misadventure was a one-off.  It tells me you have suffered in prison and points to your medical problems and weight loss which is supported both by the probation officer and your appearance from the interviews.

5.  Fortunately, your health problems do seem now to have settled down.  He asks me to take into account your age, your health and the fact that you were a foreigner in assessing the starting point.  Also, the offence is not exacerbated by any aggravating features.  He seeks a reduction also as this is a retrial.  Additionally, he asks me to take into account the fact that this is not cannabis resin; this is herbal cannabis, and therefore a lesser starting point should be taken.

6.  Very properly, he quotes the case of Secretary for Justice v Lee Siu Kei.  In that case, the defendant pleaded guilty to trafficking in just over 13 kilograms of herbal cannabis, and the court took a starting point of 5 years which was reduced to 4 and a half years on the basis of it being of a herbal nature.

7.  With respect to Mr Whitehouse, there is one aggravating feature and that is the fact that the trafficking involved you bringing the cannabis into Hong Kong.  That, in my opinion, is an aggravating feature.  I do agree that the starting point should be reduced because of the herbal nature of the cannabis, and I will refer to that later. 

8.  I must confess that I have considered the application put forward and I take the view that your mere good character, your health, age and foreignness and the fact this is a retrial do not entitle you to any further discount.  I have taken into account the facts of the case, I have taken into account your clear record, I have taken into account the mitigation advanced and the charge itself, and I would take as a starting point of 5 years 9 months if this were to be cannabis resin.

9.  This being herbal cannabis, I am giving a discount of 9 months, and therefore you will go to prison for 5 years.