HKSAR v. SWANEPOEL PIETER LUTHER

HCCC 411/2018

[2019] HKCFI 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 411 OF 2018

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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 31 December 2018, the accused 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 Chapter 134. He was committed to this court for sentence.

Before me this morning, the accused confirmed his plea and his acceptance of the Summary of Facts. Briefly, on 24 March 2018, the accused was asked for a Customs check on arrival at the Hong Kong International Airport from Johannesburg, South Africa. At the time, the accused took out a key from his backpack and opened the lock of the suitcase for examination. Upon searching the accused’s suitcase, Customs officers found the bottom of it excessively thick and it was suspected that there was a false compartment.

Upon further examination, some grey powder was found in the hidden compartment. It turned out to be the drug particularised in the count, that is, a total of 1.98 kilogrammes of a crystalline solid containing 768 grammes of methamphetamine. The estimated retail value of the drug was about HK$1,060,000. Subsequently, when interviewed, the accused claimed under caution that he bought the suitcase for US$20 from a flea market in South Africa and that he had no knowledge of the presence of the drug. He now, of course, admits that he knowingly brought the drug into Hong Kong.

Mitigation and the Accused’s Personal Background:

The accused was born in Zimbabwe and is now aged 58. Reportedly, he has obtained two degrees, one in social sciences and the other in engineering. The accused is divorced with two children. He claimed to be in self-employment at the time of the offence. But prior to that, reportedly, he had worked for a long time in the chemical industry. The accused did not have any prior criminal conviction here in Hong Kong.

In mitigation, Mr Percy prayed in aid the accused’s clear record. However, in the face of serious offences like trafficking in dangerous drugs, the offender’s clear record is not any powerful mitigating factor. Insofar as the accused’s personal background is concerned, Mr Percy handed up a letter written by the accused himself in which the accused disclosed that he was hard hit in respect of both of his long term employment and long term marriage. For the former, because of the government policy in South Africa, he was forced to leave his managerial position after having worked in that company for a long time. In terms of his marriage, his wife asked for a divorce after 22 years’ marriage.

Mr Percy also told the court that the accused tried to offer assistance to the Customs and Excise by providing names and telephone numbers of the contact persons in South Africa. While accepting that such is not useful information which would require any special hearing procedure, Mr Percy submitted that the move on the part of the accused indicates his true remorse and his intention to assist. However, our settled authorities all point to the fact that when the assistance is of no use, then no further reduction in sentence could be provided in relation to that.

Sentencing Considerations:

The tariffs for trafficking in ‘Ice’ were laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. See also HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 600 and 1,200 grammes of ‘Ice’, a term of 20 to 23 years’ imprisonment is called for. Further, the Court of Appeal in the case of Abdallah stated that if an international element was involved in the trafficking, then for amounts above 1 kilogramme, an enhancement of not less than two years would be appropriate. In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal further observed that for an amount between 500 and 1,000 grammes of drugs, and an enhancement of one year to two years would be appropriate.

Sentencing in this case:

Having considered the facts of this case and the amount of the drug involved, I take the view that the most lenient initial starting point that I could adopt is one of 20 and a half years. Moreover, as the accused took the drug into Hong Kong, there was certainly an international element regarding his trafficking activity. For that, I would enhance the starting point by a further one and a half years, making the overall starting point one of 22 years.

The accused pleaded guilty at the committal stage. He would receive a full one-third reduction for that. Other than his plea, there is nothing in this case which would warrant any further reduction in sentence. In relation to the accused’s personal circumstances, while this court is sympathetic with the plight the accused was then in, our courts have repeatedly pointed out that unless there are exceptional matters, those should not normally attract any sentence reduction when one commits the serious offence of trafficking in a dangerous drug.

22 years reduced by one-third is 14 years and 8 months’ imprisonment, and this is the term I impose on the accused for the offence in respect of which he has pleaded guilty.