HKSAR v. Taylor Mohato Michael

HCCC 268/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 268 OF 2015

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

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COURT: The defendantpleaded guilty before a magistrate for a

charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, the background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. On 26 November 2014, the defendant was admitted into a hospital upon his complaint of abdomen pain. In the hospital he discharged four pellets containing “Ice” each of which was wrapped in a plastic bag. The defendant said on a previous day, 25 November, he had been forced to swallow a number of pellets of dangerous drugs in the Mainland. He came to Hong Kong on the same day.

An operation was then conducted on the defendant. As a result, 64 pellets of “Ice” were retrieved from his body. These 64 pellets contained a total of 776.6 grammes of a crystalline solid containing 767.1 grammes of methamphetamine hydrochloride.

The records show that the defendant had come to Hong Kong from South Africa on 17 November 2014. On 20 November he went to the Mainland and returned on the 25th.

I was told that the defendant is 30 years of age. He received High School education in South Africa. He engaged in selling garments and earned around US$500 per month. He is married and has three children aged between 6 months and 4 years. He has no criminal record in Hong Kong.

Learned counsel for the defence, Mr Beel, asked me to take into account that the defendant pleaded guilty at the first opportunity. He also told me that the defendant committed the offence in a very desperate situation. The defendant ran a business selling garments back in South Africa, but as a result of crimes committed on him he lost all his stock. To make a living he incurred heavy debt. Under great pressure he engaged in the present offence.

Recent medical examination revealed that the defendant suffered from tuberculosis and was found to be HIV positive. Whilst he was cured from tuberculosis, the HIV condition remains. This has a severe impact on him and his family.

The dangerous drug the defendant trafficked in was “Ice”. The total narcotic content was 767.1 grammes. As the offence was committed on 26 November 2014, the case HKSAR v Tam Yi Chun CACC 524/2011, which was decided on 6 June 2014 is applicable.

In that case the Court of Appeal held that there is no acceptable rationale for a distinction in sentencing for trafficking in large quantities of “Ice” on the one hand and large quantities of heroin on the other. It was therefore held that for trafficking in “Ice” for a narcotic content of 600 grammes or more the tariffs as prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for that quantity is applicable.

In Abdallah the Court of Appeal held that in a case of trafficking in heroin if the narcotic content was 600 grammes to 1,200 grammes the sentence should be 20 to 23 years’ imprisonment. It was further held that the international element in trafficking whether by importation or by exportation is to be regarded as a factor in material aggravation.

In the present case the defendant brought the dangerous drugs from the Mainland. Having heard counsel, I am of the view that the starting point should be, for this reason, enhanced by 18 months.

Having considered the whole circumstances, I will adopt an ultimate starting point of 22 years in the case. The defendant is entitled to a one-third discount for his guilty plea. I have considered whether the defendant is entitled to any further discount, in particular I have taken into account the health condition of the defendant. In my consideration, I have had regard Chan Kui Sheung [1995] 3 HKC 279, and Yip Kai Foon [2000] 3 HKCFAR 31.

In all the circumstances, bearing in mind what learned counsel told me, I am of the view that one-third is the extent of discount that the defendant is entitled to in this case.

So, defendant, please stand up.

For the said reasons I sentence you to 14 years and 8 months’ imprisonment for the offence.