HKSAR v. Makgae Khutso Daniel

HCCC 454/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 454 OF 2013

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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 to one count of trafficking in a dangerous drug, namely 0.87 kilogramme of a solid containing 0.58 kilogramme of cocaine.

The facts reveal that the defendant is a South African national and was intercepted at the Hong Kong International Airport on 14 May, following his arrival from Sao Paulo via Doha. At that time, he was carrying a brown jacket in his hand. A search was conducted and the jacket was found to contain the drug mentioned in the count.

The defendant was arrested and cautioned. He said that he came to Hong Kong in order to buy phones and clothing for his business, and that he had bought the jacket in a market in South Africa two weeks before coming to Hong Kong.

Subsequently, the defendant was interviewed under caution on video and he admitted that he lives in South Africa and had worked for some time in the Philippines but quit his job in 2012. The purpose of his visit to Hong Kong this time was to sell the cocaine which was concealed in his jacket to a person called ‘Tiger’, or ‘Asan’, who is a Pakistani male whom he had met previously. The defendant also provided the interviewing officer with a contact phone number of this person.

The drugs were subsequently examined by the Government Chemist and the street value of the dangerous drug at the time was estimated to be around HK$842,160.

The defendant is aged 31 and has a clear record in Hong Kong. As far as his background is concerned, which has been confirmed by Mr Tibbo, the defendant has young children back home in South Africa and that he did have a business before coming to Hong Kong, selling cell phones and clothes in South Africa. The defendant himself revealed to the Customs & Excise officers that he had been educated and obtained a diploma in information technology at a college in 2002, and he claims that he is not a drug abuser.

The reason for the delay in sentencing would be revealed in the confidential tape which would be sealed and not to be opened without the court’s approval.

The defendant’s background is that he is very remorseful for what he has done as indicated by his early plea, and during this time in prison, he has sought to better himself and has, from what I have seen which has been submitted to me, been studying hard in prison and he has also been involved in Bible studies and Bible correspondence courses and I am told that he also has been helpful to Father Witherspoon who is the visiting pastor, or visiting priest, in prison in Hong Kong. I am told by Mr Tibbo that the defendant is interested, eventually, in doing ministry work.

It is always of great value to a particular defendant who is facing some time in prison that he better himself in prison to prepare him for release, and this is what I am told the defendant is doing.

As far as sentence is concerned, I do appreciate that the defendant has a clear record in Hong Kong. He is of a relatively young age. I do also appreciate the fact that there are sentencing guidelines in relation to trafficking in cocaine, particularly, as Mr Tibbo mentioned, the case of Abdallah in 2008, where the Court of Appeal laid down guidelines for trafficking in between 600 to 1,200 grammes of cocaine, the sentence being 20 to 23 years. I also agree with Mr Tibbo that, in this case, the amount the defendant was carrying was 580 grammes.

So having considered all this and taking into account all the facts in this case, I consider that an appropriate starting point would be one of 19 years’ imprisonment.

There is one aggravating factor; it is the international element which covers the importation of this drug from overseas to Hong Kong. So I will increase the sentence by 1 year to 20 years’ starting point.

The defendant is entitled to the full one-third discount because of his plea, and I also take into account his remorse. So the sentence, after a one-third discount, will be 13 years 4 months. I will reduce that to 13 years. So the defendant will go to prison for 13 years.

Just to note that Mr Tibbo did raise the possibility of an argument in relation to the Bill of Rights, particularly for the sentencing guideline which he says is the sort of mandatory guideline for the lower court which the Court of Appeal has laid down.

I said to Mr Tibbo that it is, in my view, not a mandatory guideline but merely that one of the advantages of having these guidelines laid down by the Court of Appeal is for counsel to know and be able to advise their client as to what they may expect from a sentencing court. But in my view, these are not mandatory. A particular sentencing judge in a particular case may go above or below the suggested guidelines for good reason, so it is not, in my view, an argument that appeals to this court so I do not take that into consideration.

So that is all I wish to say. The defendant goes to prison for 13 years.