HKSAR v. LHOUVUM NEMBOI

HCCC 102/2016

[2018] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 102 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The defendant is convicted after trial of one count of trafficking in 2,089.50 grammes of a powder containing 1,414.50 grammes of cocaine. The offence occurred on 13 September 2015 which was more than three years ago. The cocaine, which was the subject matter of the charge, was found in what purported to be 14 bars of soap and two boxes of cosmetics contained in a suitcase being carried by the defendant when she was intercepted at the Customs Arrival Hall of the Hong Kong International Airport shortly after she had arrived Hong Kong from India. The value of the dangerous drugs, if sold at street level in Hong Kong, would be about HK$2.2 million.

The defendant is an Indian national. She was 25 years of age at the time of the offence and is now aged 29. Her parents, siblings and husband are all living in India. She has a clear record in Hong Kong. According to her, prior to the arrest, she had worked in India as a beautician and a therapist. Based on her video-recorded interview, she came to Hong Kong because of a person whom she called "Mercy", Mercy had offered her a free trip and also US$500, so that she would bring the stuff in the suitcase to Hong Kong for someone to collect the stuff from her. The defendant claimed that she had no knowledge of the stuff in the suitcase was dangerous drugs. However, the jury by their verdict found otherwise.

Starting point

The sentencing tariff for trafficking in cocaine follows that for trafficking in heroin: Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. I am mindful of the fact that the offence took place in September 2015. Nevertheless, the applicable tariff is the one laid down in R v Lau Tak Ming [1990] 2 HKLR 370 as amended by HKSAR v Abdallah [2009] 2 HKLRD 437. The judgment of the latter case was handed down on 12 March 2009. According to Abdallah, trafficking in 1,200 to 4,000 grammes of cocaine narcotic carries with it an imprisonment term of 23 to 26 years.

It is well-established that the sentencing starting point for the offence of trafficking in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach and that the mere fact that the defendant had only acted as a courier of the dangerous drug is not a good reason for departing from that mathematical approach: HKSAR v Kilima Abubakar Abbas [2018] HKCA 602.

In the present case, the quantity of the cocaine narcotic concerned is 1,414.50 grammes. I can see no good reasons to depart from the mathematical starting point. Therefore, applying a mathematical approach, the starting point of the sentence is 23 years and 3 months’ imprisonment.

Besides, the offence is aggravated by the presence of an international element, in that the cocaine was imported by the defendant into Hong Kong from India. According to the broad guideline laid down in the Court of Appeal in HKSAR v Chung Ping Kun [2014] 6 HKC 106, the judgment of which was given on 2 July 2014. For the presence of the international element, an offence for trafficking in over 1,000 grammes of cocaine should be enhanced by not less than 2 years. I reckon that the above guideline is not a straitjacket and in my assessment the enhancement for the international element in the present case should be 2 years.

Therefore, the sentence for the offence before any mitigation is considered is one of 25 years and 3 months’ imprisonment.

Regarding mitigation, in my judgment, there is little in the defendant’s personal or family background that can afford her any discount in sentence and none is relied upon by Mr Tze in mitigation. As regard the fact that the defendant is, perhaps, the only inmate in Hong Kong who speaks Thadou-Kuki, there is evidence before me that the defendant can speak both English and Hindi and that her standard of English has improved during her detention as she was introduced to a Bible club by Father John Wotherspoon. Therefore, I do not accept that the defendant has made out a case of additional hardship for the purpose of mitigation. Upon my inquiry, Mr Tze says that he has no instruction that the defendant has participated in Father John’s campaign against international drug trafficking.

However, there are two matters put forward in mitigation which merit consideration. The first one is her voluntary participation in the controlled delivery operation which took place in the afternoon of the day of her arrest. The operation lasted for about two hours before it was called off.

During those two hours, the defendant had followed the instruction given to her by customs officers by sending out text messages and making phone calls to the other side. There were also some phone calls made to her. Complying with the instruction given to her by the Customs, she spoke to the other side only in English. In the event, no one came to the guest house to meet the defendant and the controlled delivery operation was unsuccessful and resulted in nothing.

I am satisfied that the defendant was willing to assist the Customs by taking part in the operation. However, I would not speculate what the result would be had the defendant been allowed to speak in her mother tongue. In HKSAR v Smit Hector Edward [2017] 1 HKLRD 287, the question of the discount to be given to an accused was willing to take part in a controlled delivery operation was considered.

The Court of Appeal by referring to HKSAR v Darlington [2016] 1 HKLRD 692, observed that there could not be any fixed percentage of identifiable range of percentage to be applied to assistance in controlled delivery cases. It was held that the discount to be given was a matter within the discretion of the sentencing judge having regard to the facts of the case.

Having considered the nature, the limited extent of the defendant’s assistance and the nil result of the operation, I grant the defendant a discount of 9 months from the starting point, which I consider to be a bit higher than one may be given in the circumstances, there being no suggestion that the defendant would be subject to any personal risk for rendering assistance to the authority.

The second one is about the delay in the trial of the defendant. As I have mentioned, the offence occurred on 13 September 2015 and the trial only commenced three years later. I note, however, that there was no delay in the prosecution of the defendant as she was committed for trial on 26 February 2016 and her case first came up for listing on 5 April 2016. However, the case could not have been tried earlier, mainly because of listing problem as well as the difficulty in finding an interpreter who speaks her dialect.

I note also that the period of the defendant’s detention prior to conviction would automatically be taken into account in satisfaction of part of her sentence by virtue of section 67A of the Criminal Procedural Ordinance, Cap 221. That said, I accept that the defendant would have experienced a degree of stress and anxiety over and above that of an ordinary accused remanded in custody pending trial in view of the exceptionally lengthy waiting period in the present case. For this reason, I exercise my discretion and grant the defendant an additional 3 months discount in this regard.

Based on the above, the defendant is sentenced to 24 years and 3 months’ imprisonment for the offence.