HKSAR v. NOGQADA THEMBEKA EMMA

HCCC 339/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 339 OF 2016

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 27 January 2016, at the Hong Kong International Airport, you unlawfully trafficked in 1.32 kilogrammes of a solid containing 880 grammes of cocaine.

On that date, you had arrived in Hong Kong on a flight from Addis Ababa, originating from Sao Paolo. You were intercepted for inquiries, and you told the Customs & Excise officer that you intended to proceed to Macau. You were then released, but later followed to the Turbo Jet ticket counter, and then the Travelex booth.

After completing your transaction, you were detained. Your baggage and person was searched, but nothing illegal was found. You were suspected of internal concealment of drugs. Thus you were sent to the North Lantau Hospital where examination confirmed the presence of foreign objects in your body. You were then taken to Queen Elizabeth Hospital, where you discharged a total of 106 packets containing the drugs as set out in the charge. The seized drugs had an estimated retail value of $1,403,160. Found in your possession at the time was US$2,500, HK$717.30, and 27.65 of Brazilian currency.

In your record of interview, you said that you departed from Brazil on 25 January 2016, a female called Lizzy had asked you to swallow these 106 pellets and discharge them in Macau. You would receive a reward of US$5,000. You had not yet received your reward.

At the time of your arrival in Hong Kong you were 43 years of age. You are a South African national, now aged 44, your birth date having passed some less than two weeks ago. You have a clear criminal record, and have received education up to upper secondary level in South Africa. You are reported to have HIV since 2003. At the time of the commission of this offence, you were living alone in Sao Paolo, Brazil.

Mr Stephenson, your counsel, has enlightened the court on more background, and that is that you are the mother of two children aged 5 and 22. They are both living in South Africa. Your parents are also living in South Africa, and are retired. Your father is aged 70, and your mother is 64 and a housewife.

You were originally working in South Africa as a domestic helper, however, your employers failed to pay your wages, thus you suffered poverty. An opportunity came up in Brazil for employment, and thus you went to live in Brazil to work as a magazine co-ordinator. That salary, however, was not as good as expected, and you were still struggling to make ends meet. Being offered the sum of US$5,000, you agreed to transport these drugs to Macau as this was easy money.

I have received a letter written by you showing me your remorse, and apologising for your commission of this offence. I have also received a letter from Father Wotherspoon, informing me of your assistance, post-arrest, informing the wider public of the consequences of international drug smuggling.

Mr Stephenson has asked this court not to impose the full enhancement for the international element as he says that the drugs were destined for Macau, and not Hong Kong. You were obliged to come to Hong Kong, as that is where your flight took you, but you were to eventually discharge these drugs in Macau.

In my view, it matters not that these drugs were destined to be discharged in Macau. There is still an international element in that you arrived in Hong Kong with the drugs. So far as sentence is concerned, the leading case for trafficking in cocaine in these large amounts is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. The bracket to which you fall into is between 600 to 1,200 grammes, which attracts a sentence of between 20 to 23 years’ imprisonment as a starting point after trial.

Defendant, had you been convicted after trial, I would have taken a sentence of 21 years’ imprisonment. This starting point should be enhanced, as there is an aggravating factor as a result of the international element, that is of you bringing these drugs into Hong Kong. And following the case of Chung Ping Kun CACC 85/2014, that starting point shall be enhanced by 21 months. That would make a total starting point of 273 months. Giving you full credit for your plea of guilty, that term shall be reduced to 15 years and 2 months’ imprisonment.

The strongest mitigating factors, is of course your plea of guilty. In the cases laid down by the Court of Appeal, in HKSAR v Akinyi Grace Sylvia and Masham Deborah James, CACC 324/2015 and CACC 381/2015, in following those cases, I am unable to give you any further discount in respect of your assistance given to the government of Hong Kong post arrest. There are no other mitigating factors on the facts of this case, and you shall therefore be sentenced to 15 years and 2 months’ imprisonment.