HKSAR v. MCIMBI NOKHAYA LYDIA

HCCC211/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 211 OF 2009

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

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COURT:  Nokhaya Lydia Mcimbi, you trafficked in a quantity of dangerous drugs on 14 February of this year by importing it into Hong Kong, those drugs being heroin hydrochloride which you had concealed inside your body and which you brought into Hong Kong through the airport on a flight from Bangkok.

     The quantity, as has been set out both in the charge and in the facts which you have admitted, is a total weight of 711 grammes of which 513 grammes was heroin hydrochloride.

     You told the Customs officers who interviewed you that you were instructed to take that to Shenzhen for reward.

     You have pleaded guilty to trafficking in dangerous drugs, and of course you fall to be sentenced now for that offence.

     You have been told, I am sure, that the sentence for trafficking in dangerous drugs is based on what is called the narcotic content of the dangerous drugs that have been trafficked.  That is to say not the whole quantity, but, in your case, the 513 grammes of heroin hydrochloride that was in that mixture.

     The Court of Appeal here in Hong Kong has laid down guidelines for sentence in trafficking dangerous drug cases so that there is a consistent approach to sentencing in different cases.  As between your case and the other cases that come before the court, the court will be taking a broadly consistent approach, and that is important.  It is fair, and it means that those involved in these cases know the basis upon which the court approaches sentence.

     The sentences, as I am sure you have been advised already, are severe for trafficking in heroin.  Perhaps you did not appreciate the severity of the sentences in Hong Kong for trafficking in dangerous drugs, although they are not as severe as the sentences imposed in some countries in the Asia region, where, in some countries, capital punishment is imposed for quantities of drugs much smaller than the drugs that you trafficked into Hong Kong.  But the imposition of severe sentences of imprisonment is the only effective deterrent that there is to try to stop the trafficking of the sort which you have committed.

     I am aware that you are the mother of two young children, who will be deprived of their mother for a prolonged period, that you will be separated from them and from the rest of your family for a prolonged period, and that you will be separated from them in what is, for you, a foreign country.  But I am afraid that does not amount to mitigation.  I am aware of it, but I am also aware, of course, of the damage which heroin can cause to those who become addicted to it, and you are part of the trafficking system which prolongs that addiction.

     I know you have been advised that the quantity of dangerous drugs in your case puts you into a bracket which covers those who traffic in 400 to 600 grammes of heroin, for which sentences starting at 15 to 20 years’ imprisonment are held to be appropriate.  Those are sentences after trial; that is, before the discounts for the mitigation available to you, and approximately 500 grammes is in the midpoint of that bracket, and I am satisfied that the starting point in your case should be a sentence of 17½ years’ imprisonment.

     I discount that by one-third to reflect the mitigation that you have available to you.  That is primarily your plea of guilty, but it takes into account all the circumstances that you have by way of mitigation.  But your remorse is very important, and your co-operation is also very important, and that is the main reason for the discount of one-third.  It is a substantial discount, because the discount is of 5 years and 10 months; nearly 6 years.  That is the discount that you get, and that brings the sentence down to a sentence of 11 years and 8 months’ imprisonment.

     That is the sentence that I must impose upon you in respect of this offence:  11 years and 8 months.

     I want to say this point.  I am grateful for the responsible approach of those representing the accused in informing the court prior to today that this case was to be a plea of guilty, which has enabled the case to be listed for plea today rather than the pre-trial review which was originally the listing for today, and that of course results in a saving of time and public money, and that is an appropriate, responsible attitude, and I am grateful for that.