HKSAR v. Govender Gengamma

HCCC 239/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 239 OF 2015

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

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COURT: Govender Gengamma, you have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong.

You have admitted that on 14 January 2015 you trafficked in 3,112 grammes of a solid containing 2,056.8 grammes of cocaine.

On 14 January 2015, you were stopped for a luggage check as you prepared to exit through the green channel of the Customs Hall at the Hong Kong International Airport. An examination of your luggage by Customs officers resulted in the discovery of a large quantity of white powder which was then suspected to be cocaine. That white powder had been concealed in the lining of five books and two compact disc cases which were themselves inside your luggage. The suspicions of the Customs officers proved to be correct and the white powder tested positive to a cocaine narcotic test agent.

You were immediately arrested, and when asked denied any knowledge of the presence of the drugs. Your response was, “I don’t know, I just buy some books for my friend.” It subsequently transpired that you had travelled that day to Hong Kong from Kochi in India via Kuala Lumpur in Malaysia. Your journey had originated in Durban in South Africa.

The summary of facts which has been admitted by you this morning reveals the following.

Subsequent to your arrest at the Hong Kong International Airport, you were interviewed by Customs officers and amongst other things said that you had paid for the trip you had undertaken yourself, that you had intended to relax in Hong Kong and you maintain that you had no knowledge of the presence of the drugs. The books you said you had purchased near the airport in Johannesburg from a street vendor and you were then unware of the existence of the cocaine.

Some three months later on 12 March 2015, you contacted the Customs and Excise officers indicating that you wished to fully cooperate with their investigation. On 25 April 2015, you were again interviewed and on this occasion gave a very different account of your travels.

What you said on that occasion was, and I paraphrase, that previously you had been asked to travel by a Nigerian male, his name was Peter. You had, at his request, travelled to Argentina and Brazil where you collected luggage which you then returned to Johannesburg. It was part of those instructions that you were not to collect the luggage on your return. You did this on two occasions but later learnt that there had been drugs inside those suitcases so you stopped helping Peter.

Nevertheless, what you stated was that Peter himself had introduced you to another person named Martin who asked you to travel to India for three days and then to Hong Kong, and this was the journey that eventually led to your arrest. As before, Martin bought the tickets and booked the hotels in India and in Hong Kong.

Whilst in India, Martin contacted you and told you that there would be delivered to you some cookbooks and CDs which were to be taken to Hong Kong to his friend. In due course, the books and CDs were delivered to you and you placed them in your luggage. You stated that you advised that the books and the CDs would be collected from you once you arrived in Hong Kong. Even at that time and in the course of that interview, you denied that the drugs were contained in the books and the CD. Nevertheless, by your plea of guilty, it is apparent that you did know at that time that there were drugs concealed in those items.

Subsequent to your arrest and those interviews that took place initially at the airport, the Government Chemist then analysed the white powder which was found in your luggage. As appears in the indictment, there were 2,056.8 grammes of cocaine.

It is accepted that this cocaine has an estimated street value in Hong Kong of slightly in excess of $3 million.

That is, by any reckoning, a very large amount of drugs and a significant factor in the sentencing component for your offence.

The Court of Appeal in Hong Kong has regularly emphasised the seriousness of the offence of trafficking in dangerous drugs and in that context the significances of the type of drug, the quantity of the drug and the aggravating factor of its importation into Hong Kong. Specific guidance has been provided to trial judges for sentencing for that very purpose.

In your circumstances, I had been provided with three relevant authorities which are accepted by your counsel as being pertinent in the circumstances. They are The Queen v Lau Tak Ming & Anor [1992] HKLRD 370; AG v Pedro Neil Rojas [1994] 2 HKCLR 69; and HKSAR v Abdallah [2009] 2 HKLRD 437.

In Abdallah, the Court of Appeal when dealing with the drug heroin revisited earlier sentencing guidelines for those convicted of trafficking in heroin which went beyond the parameters of the then existing guidelines of The Queen v Lau Tak Ming. It is accepted that those observations apply with equal force to the drug cocaine.

Applying those guidelines, as I must, it is clear to me that the amount of cocaine brings you within the sentencing parameters for 1,200 to 4,000 grammes which, as the Court of Appeal had indicated, should be after trial and before enhancement between 23 and 26 years’ imprisonment. That starting point for trial is subject to the following observations by the Court of Appeal in Abdallah at page 453, paragraph 43, where they said:

“We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kilogramme will be less than 2 years’ imprisonment.”

They continued: amongst the aggravating factors calling for enhancement is that there is an international element. Importation of drugs into Hong Kong is such an international element.

On your behalf, Mr Dunn has indicated to me that you are 58 years of age. You are, albeit a South African national, an Indian Tamil by origin. You are a divorced person with two adult children and that you do not enjoy good health in as much as you suffer from diabetes. He said on your behalf that your circumstances are a familiar story where those who carry the drugs are the ones who are apprehended and those who are organising are not. Nevertheless, and not withstanding those observations, the fact is that you have engaged in this act of trafficking in dangerous drugs and I must assume for only one reason that is the financial gain.

Turning then to the application of the sentencing guidelines. In my opinion, bearing in mind the parameters indicated by Court of Appeal, the appropriate starting point for sentence before enhancement is 24 years and that the degree of enhancement for the importation into Hong Kong is a period of 2 years. That would be a period of 26 years after trial. From that sentence, you would be entitled to a discount of one-third for your plea of guilty and obvious remorse. From my calculation with the appropriate discount, the sentence is one of 17 years and 4 months’ imprisonment.

In those circumstances, the sentence I impose is one of 17 years and 4 months’ imprisonment.