HKSAR v. CHISHALA MOSHO

HCCC 157/2020

[2020] HKCFI 2966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 157 OF 2020

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

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COURT: Background and the Facts

On 6 July 2020, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the Court of First Instance for sentence. This morning, the defendant confirmed before me her plea and her acceptance of the Summary of Facts.

Briefly, on 12 December 2019, the defendant was intercepted by the customs officers for examination after she had landed at the Hong Kong International Airport from Cape Town, South Africa. As a result, it was found that she had concealed a foreign object in plastic wrappings in between the two pairs of underpants which she was wearing. Inside the grey object was 98 pellets containing a total of 962.4 grammes of a solid containing 822.94 grammes of cocaine, with a total street value of about HK$1 million. Under caution, the defendant claimed that she was only given the parcel when she was at the Cape Town airport for carrying into Hong Kong. Of course, the defendant now admits that she knowingly imported the drugs.

The defendant’s background and mitigation

The defendant is a holder of Zambian passport and has not offended in Hong Kong prior to the commission of the present offence. She is now aged 46 and has one son aged 25 in Zambia. According to Ms Alva for the defendant, the defendant was born in the United Kingdom but was brought back to Zambia by her parents when she was a child. Unfortunately, both her parents passed away in Zambia and she then lived with her elder sister. At the age of 17 (21), the defendant gave birth to a boy but the father of her son abandoned her as soon as the child was born. With the help of her elder sister, the defendant did a small trading business but because of poor investment decisions, she was in financial difficulties and she therefore agreed to carry the drugs for delivery to a Nigerian man in Hong Kong called Nonso.

Ms Alva informed the court that the defendant suffers from a long term medical condition but according to the medical report placed before me, the prognosis is good if she continues to have good drug adherence and the life expectancy is comparable with the general population. The defendant also complained of left foot abscess for which she was treated. She also has ankle swelling which may be related to her salt intake.

In mitigation, Ms Alva submitted to the court a letter from Father Wotherspoon who informed that the defendant had helped in his anti-drugs campaign. I have not only read Father’s letter but also the post written by the defendant in relation to the campaign in which the warning she gave was to ask people not to agree to carry bags belonging to others although these people may say they have to use the toilet. Pausing here, I do not quite understand how such a statement or warning would help to dissuade others from getting involved in the drug trade because in the warning she gave, the defendant seemed to be suggesting that she only got caught in Hong Kong because she had helped others to carry bags of drugs of which she had no knowledge but the admitted fact is that the defendant now acknowledges that she knowingly brought the drugs into Hong Kong.

In relation to the name Nonso given by the defendant, Ms Alva accepted that the defendant did not mention this name to the Customs when her phone rang nor when she attended the video-recorded interview.

Sentencing considerations and the sentence

The tariffs for trafficking in cocaine were the same as those laid down for heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 600 and 1,200 grammes of cocaine, the sentence is a term of imprisonment of between 20 to 23 years.

The drug involved in this case was a total of 822.94 grammes of cocaine. Such was a large quantity and this is a very serious offence.

Having considered the facts and all the relevant circumstances, I take the view that a starting point of 21 years is appropriate. Moreover, as the defendant took the drugs into Hong Kong, there was an international element in this trafficking activity which aggravates the offence. In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal stated that an enhancement of 1 to 2 years would be appropriate for the international element in the trafficking of between 500 and 1,000 grammes of cocaine. I consider that in the present case an enhancement of 1½ years is appropriate. Therefore, the overall starting point after the enhancement is one of 22½ years.

The defendant pleaded guilty at the first available opportunity and maintained her plea throughout, I would give her a full one-third reduction for her plea. As to her personal background, including the clear record here in Hong Kong, while the court is sympathetic with regard to the said tragic events in her upbringing and the plight she was in, such personal circumstances do not constitute any powerful mitigation warranting a further reduction of sentence in this serious type of drug trafficking cases.

Now, in respect of the defendant’s participation in Father Wotherspoon’s campaign, I should reiterate McWalters JA’s observation in HKSAR v Crispo Vida Mijide [2019] HKCA 741 at paragraph 36:

“In respect of the applicant’s first complaint...”,

that is, “the judge erred in not giving her a further reduction of her sentence for her participation in Father Wotherspoon’s campaign”, “...it is true that the Court of Appeal did say in its judgment in Kilima Abubakar Abbas that the sentencing judge has a discretion to allow a ‘token discount’ of a maximum of three months for post-sentence participation in Father Wotherspoon’s campaign, but it also adhered to its previously expressed view that this is a matter that the Executive is better equipped to perform. It is not reasonably arguable, therefore, that the judge erred in adopting the stance she did.”

In the present case, having considered all the relevant circumstances, I do not consider it appropriate to exercise my discretion to order a further reduction to take account of the defendant’s participation in the campaign. It would appear to me that if the defendant had told her true story instead of suggesting in the post that she ended up in prison merely because of having taken care of bags belonging to another person, it would be more useful and helpful to warn others not to follow the same path. There is, in my view, also the question of sincerity in helping to promote the campaign if one just tells half-truth or untruth in the post.

In respect of the claim for a reduction regarding the defendant’s preparedness to assist in the controlled delivery operation, Ms Alva invited my attention to the Court of Appeal decisions of HKSAR v Jardin Rodela Maningas CACC 278/2011 (29 May 2012, unreported) and HKSAR v Yeung Lee Ming Simon [2018] 1 HKLRD 291 as well as the reasons for sentence given by Zervos J (as he then was) in HCCC 440/2015 on 2 February 2016. These cases concerned the giving of a reduction of about 3 per cent to 7.5 per cent to a defendant who had assisted in such operations.

However, what I find to be of more assistance is the case of HKSAR v Darlington [2016] 1 HKLRD 692 in which the Court of Appeal observed that - and this is the judgment given by Macrae JA (as he then was) - this is paragraph 33:

“As for any further discount for assisting the authorities in the controlled delivery,... the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases. Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance;...(iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family. It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case.”

I should also add that in HCCC 440/2015, Zervos J observed that:

“11. What emerges from these cases is that the defendant in each instance cooperated immediately with the authorities upon being arrested when found in possession of dangerous drugs in that the defendant admitted his guilt and indicated he would provide information or assistance to the authorities which was assessed as a genuine effort made in good faith by the defendant and this was usually followed by a full and frank account of the defendant’s involvement in the crime and a plea of guilty at the earliest opportunity. In these circumstances, a defendant is normally deserving of a discount greater than the one-third discount to be given for a timely plea of guilty.”

Let me now return to this case, the defendant’s version in the cautioned interview about being given the parcel of drugs at the airport of Cape Town could not, as accepted by Ms Alva, be true. Further, she had never given to the customs the name Nonso, which she now says is the name of the person who would contact her in Hong Kong and who had arranged for her trip to Hong Kong. More importantly, although the defendant provided to the customs her password to the phone, there is no dispute that after picking up two calls in which she said she was then in the hotel and had fallen asleep and later saying that she was looking for a hotel, she had, on more than ten occasions, refused to pick up the call, claiming that she felt nervous. Then, about an hour later, she told the customs that she did not want to continue with the controlled delivery operation.

In my view, the defendant’s conduct had neutralised whatever “preparedness to assist” she originally had, including her giving of the password to the authority and this is certainly one of the factors which I have to take into account in considering whether to grant her a further reduction in relation to this controlled delivery operation.

Moreover, it is also clear that the defendant never fully admitted her involvement in the offence at the initial stage of her arrest and at the stage of the controlled delivery operation or the video-recorded interview. Of course, she is entitled to remain silent but this is also the background as observed by Zervos J, against which I am to measure the preparedness to assist urged upon me by counsel or the discount deserved.

Having considered the nature, the extent, and the outcome of her assistance, I take the view that it is not appropriate to give the defendant a further reduction in respect of the controlled delivery operation.

22½ years reduced by one-third to take account of the guilty plea is 15 years’ imprisonment. This is the term I impose on the defendant in respect of the charge to which she pleaded guilty.