HKSAR v. NKAUSU ROOSEVELT

HCCC 359/2020

[2021] HKCFI 1720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2020

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

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COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court for sentence. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.

The facts of the case may be summarised as follows. The defendant was intercepted by customs officers when he arrived Hong Kong from South Africa by air. Upon search, two packets containing a total of 783 grammes of a solid containing 648 grammes of cocaine were found concealed under the insoles of his shoes the defendant was wearing. Later, the defendant discharged a total of 31 pellets, each contained cocaine. This 31 pellets contained a total of 392 grammes of a solid containing 246.23 grammes of cocaine.

Under caution, the defendant admitted he was offered US$3,500 for transporting 1 kilogramme of drug from South Africa to Hong Kong. He was given pellets to swallow. He could not swallow all and therefore a few packets were concealed underneath the sole of the shoes provided to him. The plan was that upon arrival of Hong Kong, he was to go to a hotel when someone would come and collect the drug. He had not yet received the reward.

I was told that the defendant is the holder of a Zambian passport. He is 35 years of age. He has studied up to technical college level. He was a businessman selling garments, phone accessories and household items. He was married but has separated with his wife. He has four children, three living with his wife and the other with the parents of the defendant. He did not have any criminal conviction record in Hong Kong.

In mitigation, learned counsel for the defence, Ms Alva, stressed that the defendant had pleaded guilty at the earliest opportunity and that he is now in full remorse. She informed the court that the defendant committed the offence since he was in heavy debt and was unable to repay. Ms Alva also asked the court to take into account that the defendant was determined to turn over a new leaf, he has been participating in biblical studies and has participated in the campaign of Father John Wotherspoon.

The defence submitted a letter in which the defendant expressed his remorse. The defence also produced letters from Father John which confirmed the participation of the defendant in the campaign. The letters prepared by the defendant for this campaign were also produced.

The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that in the case of trafficking in cocaine, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.

The total quantity of narcotic content involved in this case was 894.23 grammes of cocaine. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes.

In the subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes.

I see no reason to justify any departure from the sentencing tariff.

There was international element in this case for which having regards to HKSAR v Abdallah, HKSAR v Chung Ping Kun, CACC 85/2014, and HKSAR v Yeung Lee Ming Simon [2018] 1 HKLRD 291, bearing in mind the risk of excessive enhancement, I will enhance the starting point by about 16 months for this reason.

Having considered the whole circumstances, in my judgment, only a notional sentence after trial of 20 years and 9 months is sufficient to reflect the seriousness of the present case.

The defendant is entitled to a one-third discount for his guilty plea before a magistrate, his previous clear record in Hong Kong and the remorse he has expressed. Having heard from counsel and read the relevant letters of the defendant and that of Father John, I am satisfied that the defendant has participated in the campaign of the Father. Having regard to HKSAR v Rwakibale Aheebwa Peter, CACC 171/2017, and the cases cited in it, I am persuaded to give the defendant a further discount of 2 months.

Having considered the whole circumstances including what learned counsel said on his behalf, in my judgment this is the extent of discount the defendant is entitled to in this case.

So defendant please stand up. For the reasons I have mentioned, I sentence you to an immediate imprisonment term of 15 years.

(Proceedings after 10.39 am not required)

Court adjourns - 10.39 am

Court resumes - 10.57 am

Accused present. Appearances as before.

MS ALVA: My Lord, I...

COURT: Now...

MS ALVA: I -- that...

COURT: Yes, right. I have been told about certain apparent irregularity.

MS ALVA: Yes.

COURT: And I have heard the DARTS recording and I realise that there was a slip of tongue in relation to the notional sentence after trial. I said it was 20 years 9 months. It should be 22 years 9 months.

MS ALVA: I see.

COURT: It’s actually a slip of tongue and I believe the calculation process will confirm that it’s only a slip of tongue.

MS ALVA: Just to make it clear, my Lord, because the overall starting point should include the international element...

COURT: Yes.

MS ALVA: ...factor enhancement, right? Yes.

COURT: Yes.

MS ALVA: I see. So it was 22...

COURT: No, the 22 years 9 months includes the...

MS ALVA: Factor for international element.

COURT: ...enhancement.

MS ALVA: Yes, yes. Yes, my Lord.

COURT: You may not be familiar with this term. It’s a new term mentioned by the Court of Appeal, so the notional sentence after trial is the ultimate starting point.

MS ALVA: Mm.

COURT: Right. Perhaps I will invite parties to take the opportunity to do the calculation. I believe it should match the end result.

MS ALVA: Yes.

COURT: So 22 years 9 months include the 16 months’ enhancement.

MS ALVA: Yes, yes. We’ve made the calculations right now.

COURT: Yes, thank you.

MS ALVA: Yes, it’s correct. If it’s 22...

COURT: Right. Is it in order now?

MR NGAI: Yes, it is in order.

COURT: Yes, thank you. Right. So there was an error in the notional sentence after trial but the end result is the same.

MS ALVA: Yes.

COURT: It’s 15 years. Right. Sorry about that. Yes. Any other matters? Okay, thank you.

MS ALVA: No, my Lord. Thank you.

Court rises - 10.59 am

13 May 2021