HKSAR v. MOHAMED TWAHA SEIF

HCCC 329/2017

[2018] HKCFI 2729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 4 September 2017, you pleaded guilty before a magistrate at the Eastern Magistracy to a charge of trafficking in a dangerous drug. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence.

You appeared for sentence on 22 January 2018. At that hearing, however, your counsel, Mr Beel, informed the court that there was an important Court of Appeal case considering a discount as to your participation in Father Wotherspoon’s campaign and asked this court to adjourn sentence until that judgment had been handed down. The judgment was handed down on 18 September 2018 and hence your sentence hearing is today.

Defendant, you arrived in Hong Kong from South Africa via Dubai on 22 January 2017. At the Arrival Hall of the Hong Kong International Airport, you were intercepted for customs clearance. Customs officers suspected there was internal concealment. You were the holder of a Tanzanian passport. You were escorted to the North Lantau Hospital for an X-ray which revealed foreign objects in your body.

You were arrested and cautioned in English and you replied in English that the objects inside your body were drugs. You had swallowed 90 of them in Tanzania because you were poor and you would get US$5,000 for doing this. Thereafter, you were transferred to the Queen Elizabeth Hospital for further detention and observation.

Between 23 and 25 January 2017, at the hospital, you egested a total of 90 packets which were subsequently examined and confirmed to be 1.44 kilogrammes of a solid containing 1.23 kilogrammes of cocaine which are the subject matter of the drugs in the trafficking charge.

As of January 2017, in Hong Kong, the cocaine had a retail value of around HK$1.3 million.

You admitted that since March 2013, you had entered Hong Kong on seven occasions, including the last on 22 January 2017.

Mr Trevor Beel, your counsel, has mitigated fully and thoroughly on your behalf. You are a Tanzanian national, 37 years of age and are single. You were in the business of dealing in mobile phone trading. However, your business got into difficulties and as a result of the difficulties in your business and problems, you were approached and agreed to be recruited to come to Hong Kong to traffic in these drugs.

Mr Beel informed me that to do this you, in fact, had to train to swallow this amount of tablets or pellets. It took approximately a three-month period until you reached a limit of 90 and that was pushing it and that was as many as you could take. Obviously, the reward of US$5,000 was something you were unable to turn away and, therefore, you came to Hong Kong having ingested the 90 pellets of cocaine.

Since coming to Hong Kong, defendant, you have, as with many others in your position, participated in Father Wotherspoon’s campaign of discouraging and informing others not to be mules in carrying or bringing drugs into Hong Kong. In your particular participation, you had written two letters of which I might say are probably the most detailed letters I have seen in this type of campaign discouraging people to come to Hong Kong and informing them on the very lengthy sentences to which will be passed upon them should they be caught.

The recent judgment of HKSAR v Kilima Abubakar Abbas, CACC 143/2016, the judgment handed down on 18 September 2018, sets out that the sentencing court has a discretion as to whether to order a discount for defendants who participate in Father Wotherspoon’s campaign. The court comprised of Mr Justice Lunn VP, as he then was, Mr Justice Macrae VP and McWalters JA. McWalters JA’s decision was the dissenting decision of the court.

As was stated by Mr Justice Lunn VP, at paragraph 66, in determining what weight if any ought to have been afforded the applicant in sentencing for his participation in Father Wotherspoon’s programme. He said it is fraught with considerable difficulties. At most the applicant contributed to the simple message that Father Wotherspoon’s programme promulgated to Tanzanians, namely, that very heavy sentences of imprisonment were to be expected by those who unlawfully trafficked dangerous drugs into Hong Kong. Mr Justice Lunn went on to say:

“He did not thereby expose himself to any danger. It is simply not known whether the decrease in the arrests in Hong Kong of Tanzanian drug traffickers, to which statistics reference is made in the judgment of McWalters JA, is to be attributed in any way to the programme, let alone to the contribution of the applicant. The courts are ill equipped to make inquiries to make any such determination. To do so exposes the court to the dangers of indulging in speculation. As this court said in its judgments in HKSAR v Odira Sharon Lensa and HKSAR v Akinyi Grace Sylvia, assessing the value, if any, to Hong Kong of an applicant’s participation in Father Wotherspoon’s programme is a matter that the executive is better equipped to perform.”

The judge, however, said, it did not interfere with the discretion exercised and permitted a discount of 3 months’ imprisonment.

Mr Justice Macrae VP at paragraph 91 stated:

“This court, comprising both of my two colleagues on this appeal, has already twice said that post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the executive. I consider that is right for the reasons they have given and this court should adhere to its earlier decisions on this matter. Nevertheless, I would still permit sentencing judges a discretion to allow a token discount for this factor. Although such contributions to Father Wotherspoon’s ‘campaign’ do not amount to either positive good character nor are they readily borne of remorse, it seems to me that it may still be in the public interest to encourage a prisoner’s effort in this regard. That assessment must be in the absolute discretion of the court, an exercise with which this court will not lightly interfere, but I cannot for myself envisage any circumstances which might warrant a deduction of more than 3 months for this factor.”

At paragraph 92, he said:

“As I have said, the discount for this factor, if it is considered at all, should be no more than a token one. We must not forget that trafficking in dangerous drugs is a crime of the utmost gravity.”

As McWalters JA said, it was his view that a sentence should be one of between 6 and 12 months, a minimum of 6 and increased up to 1 year discount.

I have informed Mr Beel that I have difficulty in assessing and awarding a discount for contribution. I accept and I would encourage defendants to contribute to Father Wotherspoon’s campaign. In this case, the defendant had written two letters to support the campaign. As I mentioned to Mr Beel yesterday, I had a case whereby the defendant had written a few letters and have had his family participate and had 99 signatures of which those people were going to spread the word and, in fact, according to my recollection, Father Wotherspoon said he was probably one of the best campaigners he had.

I feel I have to distinguish between this defendant, and that in the circumstances of this defendant’s participation, I would award a 2-month discount for his participation in Father Wotherspoon’s campaign.

Defendant, as you are well informed, sentencing for trafficking in dangerous drugs in the amount you have trafficked in, that is 1,230 grammes of cocaine, the sentence guideline is that of Abdallah. For the amount of drugs that you trafficked in, had you been convicted after trial, would be one of 23 years’ imprisonment. As you have imported the drugs into Hong Kong, that is an aggravating factor and in the circumstances, in view of the amount of drugs that you had brought into Hong Kong, that sentence will be enhanced by 2 years and the sentence point will be, therefore, one of 25 years’ imprisonment had you been convicted after trial.

Defendant, you pleaded guilty at the earliest opportunity at your committal hearing and, therefore, you will be awarded the full one-third discount. And, in the circumstances, your sentence will be reduced to one of 16 years and 8 months’ imprisonment.

I reduce your sentence by a further 2 months for your participation in Father Wotherspoon’s campaign and, therefore the sentence you shall serve shall be one of 16 years and 6 months’ imprisonment.