HKSAR v. MWALUSEKE SAMUEL HEZRON

HCCC 293/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 293 OF 2015

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

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COURT: The defendant has pleaded guilty before a magistrate to one count of trafficking in a dangerous drug and is committed for sentence. The total quantity of the dangerous drug involved in this case is 1.04 kilogramme of a mixture containing 703 grammes of cocaine. The estimated street value of the cocaine amounts to over HK$1 million.

The defendant is a Tanzanian citizen. On 13 January 2015, he arrived at Hong Kong in a plane from Burundi via Nairobi, Kenya. He was referred to the Customs & Excise Department and was brought to North Lantau Hospital for examination. X-ray showed there was internal concealment inside his body. Under caution, the defendant admitted he had swallowed 77 pellets of dangerous drugs and they were given to him by a man in Burundi. He was then transferred to Queen Elizabeth Hospital and he discharged the 77 pellets of cocaine there.

In a subsequent cautioned interview, the defendant said he would receive a reward of US$5,000 for delivery of the cocaine.

The defendant is 33 years old. He is married with a 3-year-old son. He runs his own small retail business of mobile phones to support his family, including his wife, his son and his parents. He has a clear record in Hong Kong.

In mitigation, Mr Siu, counsel appearing for the defendant, submitted that the defendant has pleaded guilty before the magistrate. He has shown his remorse which can be seen from his letter to the court. The defendant’s father has passed away after his detention and he was depressed and regretful for having committed the offence. He also now realised that he will miss the chance of seeing his son growing up.

Mr Siu submitted that the defendant has never committed any criminal offence before. The defendant committed the present offence because his wife is in need of money to undergo and operation and they need US$10,000 to do that. However, the defendant has not received the promised reward.

Trafficking in dangerous drugs is an extremely serious offence. Persons committing this offence will inevitably be faced with a substantial term of imprisonment. The length of the imprisonment depends mainly on the nature and quantity of the dangerous drugs involved.

For trafficking in cocaine, this court should follow the tariff laid down in The Queen v Lau Tak Ming [1990] 2 HKLR 370, and for a large quantity involved similar to this case, this court should consider also HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking in cocaine of a quantity between 600 grammes and 1,200 grammes, a starting point of 20 to 23 years’ imprisonment should be adopted. In this case the quantity involved is 703 grammes. The appropriate starting point should be 20½ years’ imprisonment.

In the present case, the defendant imported the cocaine into Hong Kong and as rightly acknowledged by Mr Siu, this is an aggravating factor. Following the guideline in HKSAR v Chung Ping Kun, CACC 85/2014, for trafficking between 500 grammes to 1,000 grammes the enhancement should be 1 to 2 years’ imprisonment. In this case, I should enhance the sentence by 1 year.

The heavy sentence imposed for this kind of offence is for deterrence purpose. Factors like financial hardship and good character should carry little weight for consideration of sentence.

The only mitigating factor in this case is the early guilty plea of the defendant.

In the circumstances, the appropriate sentence, if convicted after trial, is 21½ years’ imprisonment.

Giving a full one-third discount for the defendant’s guilty plea, the sentence is reduced to 14 years and 4 months.