HKSAR v. Cresswell Sylvester Tertius

HCCC 435/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 435 OF 2015

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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 on 6 May 2015, at the Hong Kong International Airport, at Chek Lap Kok that you unlawfully trafficked in 1,590 grammes of a solid containing 837 grammes of cocaine.

The facts of this case were that on that date you arrived on an inbound flight from Singapore. However, that flight originated from Johannesburg. You are in fact a South African national and came from South Africa. At the airport, a search was conducted of your baggage and from a concealed compartment of your suitcase the drugs, as I have just stated, were found in two packets and had an estimated retail value of $1,982,730.

At the time of your arrest, under interview you stated that you did not know about the drugs. However, as seen from your guilty plea and admission to the facts you now acknowledge and accept that you were trafficking in a dangerous drug.

In this case, defendant, although the facts as admitted are not very detailed, you did participate in a controlled delivery operation during which a male was detained and later arrested. I have been informed more today from both Mr Donald, counsel on fiat for the prosecution, and from your own counsel, Mr Nicholas Adams, that the Customs and Excise had in fact taken you to a hotel, not the hotel of which you were told to go to because that hotel was not able to comply with the request of the Customs officers, so you were taken to another hotel and at that other hotel you made your phone call and a gentleman came to collect the suitcase.

However, a noise was heard in the bathroom as you were unpacking the suitcase to give what was thought to be an empty suitcase to him and he left. The Customs officers, however, did arrest him. I am informed that he was charged, however, he was released and offered no evidence against him.

I am told that, this man who came to collect the suitcase did make an admission under caution that he was told to go to your hotel to collect this empty suitcase.

As I mentioned, much of that was not in mentioned in the summary of facts but I have been informed of these facts by counsel and there is no dispute on those facts as related to me. I have also received a letter from Mr Donald for the prosecution dated 13 January to state that it has been accepted by the Customs and Excise Department that you assisted the authorities in taking part in a controlled delivery of dangerous drugs.

Defendant, you are 31 years of age and have a clear record in Hong Kong. In mitigation Mr Adams stated that you come from a poor area in Johannesburg and had a difficult upbringing in that you were brought up by a single mother who was a heavy drinker. In Johannesburg you worked as a salesman. You had completed secondary education. You met a person by the name of Robert who I believe had encouraged you and induced you to commit this offence.

Mr Adams has correctly referred me to the guideline case for sentencing in trafficking in cocaine which is Abdallah, and has also correctly referred to the proper brackets for which trafficking in the amount of between 600 and 1,200 grammes of cocaine attracts a sentence of 20 to 23 years.

Defendant, you had of course pleaded guilty and that is a very strong mitigating factor. The other mitigating factor in this case is of course your participation in the controlled delivery.

I refer to a case of the Court of Appeal by the name of HKSAR v Jardin Rodela Maningas CACC 278/2011 wherein the defendant in that case tried to participate in a controlled delivery but it failed due to no fault of her own. The Court of Appeal held that credit should be given for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered. It is, in my view, that you did try to secure the apprehension of the person or persons to whom these drugs were to be delivered to by participating in this controlled delivery.

In fact, quite clearly, someone did come to the hotel that person did admit that they were there to collect the suitcase. Your participation, in my view, is very important for persons like you to be encouraged to assist the authorities in this manner, and I view this as a very positive assistance to the authorities such that you should be granted extra credit for your positive assistance to the authorities. It is no fault of yours that that person was eventually released but it is clear that he was initially charged and arrested.

In those circumstances, defendant, as you know, the tariff guidelines are binding this court. So I shall proceed to sentence you on the tariff guidelines now.

Defendant, you trafficked in 837 grammes of cocaine, had you been convicted after trial I would have taken a starting point of 21 years and 3 months’ imprisonment.

There is an aggravating factor in this case, defendant, in that you brought these drugs from aboard into Hong Kong and that we commonly refer to as an international element, and on that basis the sentence should be enhanced. In following the case of HKSAR v Chung Ping Kun CACC 85/2004, I enhance that starting point by 1 year and 6 months’ imprisonment. That would mean your sentencing starting point would be 22 years and 9 months’ imprisonment had you been convicted after trial.

Taking into account your plea of guilty and your positive assistance to the authorities, I shall reduce that term of imprisonment by 40 per cent and the resulting sentence to which you shall serve, defendant, is one of 13 years and 8 months’ imprisonment.