CRIMINAL CASE NO. 416 OF 2010
COURT: The defendant had pleaded guilty to trafficking in a dangerous drug, namely 0.78 kilograms of a mixture containing 0.69 kilograms of cocaine and she was committed to the High Court for sentencing.
The facts, which have been admitted, show that on 5 August last year the defendant had travelled from Johannesburg, via Dubai, to Hong Kong and she arrived on the same flight as her former co-accused Matsinle. They were intercepted by Customs and, upon an X-ray of her internal organ, it was discovered that the accused had foreign objects inside her. Shortly after arriving in the hospital, she excreted a total of 80 packets of cocaine.
The accused was arrested and cautioned and she admitted that those were drugs but did not know what it was and she said that it was given to her in South Africa in a hotel. She named the man who gave it to her as her co-accused, Matsinle, and that he had given her 1,500 South African money and he will give her US$2,000 subsequently. Matsinle was examined with a negative result. The drugs were subsequently examined by the government chemist and found to contain the quantity as elucidated in the charge. The estimated retail value of the drugs is HK$804,960.
In a subsequent record of interview, the accused had given further information about Matsinle that in a hotel in Johannesburg she and another male had swallowed pallets of dangerous drugs inside the room. Matsinle, her co-accused, had arranged for the air tickets and three of them had boarded the flight to Dubai. On arrival in Hong Kong, Matsinle had told her to pass through Customs and wait for him and then he would arrange for the next part.
I was the trial judge in the trial for the co-accused, Matsinle, and the defendant in this case had given evidence for the prosecution against Matsinle. Unfortunately, her evidence created -- there were some doubts and the jury obviously found that the doubts, at the end of the day, they could not convict Matsinle, so Matsinle was acquitted.
Now, Mr Beel, in mitigation, had advanced several factors and it is, first of all, the background of the defendant that she is a widow. She got married in 1998. She gave birth to a son in 2002. She discovered she was HIV positive during her pregnancy. She had got the HIV virus from her husband, who died in 2005. The defendant was a hairdresser prior to her marriage, so after the death of her husband she decided to become a hairdresser again in order to earn money for her son. She then joined a family friend in Johannesburg at her hairdressing salon and she was working in Johannesburg with this friend, called Julia.
Shortly before coming to Hong Kong, her mother in Zambia had told the defendant that her son was very ill and needed an operation. I understand that the son was found to have some kidney problem, possibly brought on by the HIV virus, and needed an operation. So in order to raise money she asked Julia for a loan and Julia then promised to introduce somebody to her for her to earn extra money and she has to take something to Hong Kong. So this is the background to the arrival of the defendant in Hong Kong.
These courts have heard many, many very desperate and wretched stories from defendants who have been convicted or have pleaded guilty to drug-trafficking. People like the defendant are generally known as drug mules. These drug warlords or drug barons would normally use people who are in desperate and dire financial straits in order to carry their drugs into Hong Kong or anywhere else. Therefore, the courts in Hong Kong have always said that even for people with clear record and straitened financial circumstances, that cannot be deemed to be mitigating factors. This type of offence is so serious that the courts have to protect the society of Hong Kong from the tragic circumstances wrought by drug abuse and drug-trafficking.
So whilst the court may have sympathy with many backgrounds, like the background that has been put forward by Mr Beel on behalf of the defendant, it can only go some way to explain the motive behind the defendant coming to Hong Kong, but it does not serve as a mitigating factor.
The other matter that Mr Beel brought out is the fact that possibly the acquittal of Matsinle is not totally on the shoulders of the defendant. Being the trial judge at the time when this defendant was giving evidence for the prosecution, it is obvious that this defendant is not fluent in the English language. I recall times when I had to slowly repeat counsel’s question to the defendant after she had made an answer which did not make sense because prior evidence contradicted that answer. So it is clear to me that English is not her first language.
Mr Beel revealed to me that he was aware of this problem and had written to the Department of Justice advising that it would be appropriate that his client received appropriate interpretation when she is giving evidence. Unfortunately, the courts in Hong Kong are not equipped with the language that is required for interpretation for the defendant. But nevertheless, I think for the future perhaps more proactive actions could be taken and perhaps embassies of these countries could be contacted to see if they can provide an interpreter for a particular defendant or a particular witness in a trial in Hong Kong. I know it is difficult and I do appreciate that this language difficulty could have affected the way that the defendant’s evidence was interpreted by the jury.
The other problem in the trial of Matsinle was that the statement taken from this defendant was, what I would call a bare-boned statement. It was too brief and it did not contain information which could have been taken from her in a second statement or even a third statement. Because of this paucity of information in her statement, it gave a lot of ammunition to the defence in Matsinle’s case to say that she had made up a lot of the material that she subsequently gave in court.
These are the problems which I did see, so I do accept Mr Beel’s submission that the unsuccessful prosecution of Matsinle does not lie squarely at the door only of the defendant. There were other factors also, so I will have to consider that in sentencing in assessing the amount of co‑operation that this particular defendant had given.
I accept that the defendant has co-operated fully with the authorities and there is an aggravating feature in this case, which is the international element. She was bringing the drugs in from South Africa. The sentencing guidelines, as Mr Beel had submitted, would call for a starting point of about 20 years. This would be following the recent Court of Appeal decision in Abdallah [2009] 2 HKC 196, where it was recommended that for trafficking in heroin of 600 to 1,200 grammes, would merit a sentence of 20 to 23 years as a starting point. The case of Pedro Nel Rojas [1994] has said that sentencing for cocaine should follow that of sentencing for heroin.
Therefore, in this case, the starting point, taking into account the mitigating factors, the defendant pleaded guilty, and the background of the case, the facts of the case, the sentencing guideline, the starting point should be in the region of 20 to 22 years, taking into account the aggravating feature. I do take into account also that the defendant is found to have AIDS. As Mr Beel pointed out, he has submitted a memo from the medical officer of Tai Lam Centre For Women who confirmed this.
However, in the case of R v Chan Kui Sheung [1996] 3 HKC 279, our then Chief Justice Yang had said that the fact an offender is HIV positive is not generally a reason which should affect sentence. This has been repeated in subsequent cases that if a particular defendant’s situation worsens, there is always an appeal to the Executive for an exercise of mercy. So the fact that the defendant has AIDS does not at this stage reduce -- I can reduce a sentence because of that, particularly because it seems that the defendant is receiving HIV medication at the moment.
So having considered everything that I can possibly consider, I would take the lower of the starting point and work from a starting point of 20 years. Because of the defendant’s co-operation and giving evidence for the prosecution, I would give her 50 per cent discount. So the defendant will go to prison for 10 years.