HKSAR v. Funda Zintle Honey

HCCC 211/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 211 OF 2016

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

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COURT: The defendant, Funda Zintle Honey, a 33 year old woman from Johannesburg, pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, contrary to Section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that on 28 October 2013, at the Hong Kong International Airport, Chek Lak Kok, Lantau Island, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1,005 grammes of a powder containing 460 grammes of cocaine.

She was committed to the Court of First Instance for sentence. Before the magistrate, she also admitted the Summary of Facts prepared by the prosecution.

The summary reads as follows:

“1. At about 0755 hours on 28 October 2015, 32 year old South African female, Funda Zintle Honey, the accused, arrived at the Hong Kong International Airport, Hong Kong, from Johannesburg. She was selected for customs clearance. Upon baggage examination, two slabs of 1,005 grammes of a powder containing 460 grammes of cocaine were found inside the concealed compartment of the accused’s check-in suitcase.

2. Upon arrest and under caution, the accused denied knowledge of the drug.

3. At the VRI, that means the video-recorded interview, in the presence of the interpreter, the accused, under caution, inter alia, stated:

(i) Her South African female friend, Babalwa Sentiwe, arranged her trip to Hong Kong to purchase hairpiece products for sale back in South Africa;

(ii) Her friend would be in Hong Kong the next day, that is 29 October 2015, and she would then provide the accused with the information and the purchase of those goods;

(iii) She did not have much savings. She spent most of her savings in the trip -- on the trip to Hong Kong, and she expected to make a profit of US$1,500;

(iv) She bought the suitcase in South Africa, she had checked it, but did not discover any irregularity. She denied knowledge of the dangerous drug;

(v) The SMS message about a VP hotel of Tai Kok Tsui in her mobile phone was sent by her friend John who was her business friend.

4. During investigation, it was confirmed that there was no booking for passenger in the name of the accused’s alleged friend, Babalwa Sentiwe, on a flight from South Africa to Hong Kong on 29 October 2015.

5. The retail value of the seized cocaine is estimated HK$1,071,330.

6. The accused now admits and accepts that she knowingly had all the dangerous drugs particularised in the charge for the purpose of unlawful trafficking.

In the case of Attorney General v Rojas [1994] 1 HKC 342, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to trafficking in cocaine. R v Lau Tak Ming and Others [1990] 2 HKLR 370, as modified in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 set down the sentencing guideline for trafficking in heroin. For trafficking in 400 to 600 grammes of heroin, cocaine being treated equally, the sentence upon conviction after trial should be in the range of 15 to 20 years’ imprisonment.

Moreover, the importation of a dangerous drug into Hong Kong involved an international element which is an aggravating factor, see the cases cited in Cross and Cheung, Sentencing in Hong Kong, Seventh Edition, pages 627 to 628, and especially the case of HKSAR v Chung Ping Kun CACC 85/2014, decided on 2 July 2014, reported in [2014] 6 HKC 106, at page 110, paragraph 9:

“Where the Court of Appeal suggested a broad guideline of enhancement for the international element, and where the quantity involved is between 250 and 500 grammes, the enhancement should be from 6 months to 1 year.”

The defendant is a mother aged 33 years now, with four children, respectively aged 12, 10, 8 and 4 years.

She admits that she made the mistake in committing the offence, and she seeks forgiveness. She is a person with a clear record in Hong Kong prior to this offence.

Drug-trafficking is a very serious offence, and sentencing is almost wholly dependent on established guidelines and authorities. Save in rare circumstances, personal situations matter little, and very little discretion is left to the sentencer. Counsel for the defendant has urged upon me everything that can possibly be said in her favour.

Father John Wotherspoon has written a letter to inform me that the defendant has been an active supporter of his campaign to warn Africans about the danger of drug trafficking to Hong Kong, which has been particularly successful in stopping drug mules from East Africa to bring drugs to Hong Kong. The defendant and her family have been actively supporting his campaign by spreading the message to relatives and friends and the wider community in South Africa, and there has been no new South African drug mule arrested in Hong Kong at the Hong Kong airport for the past three months. I think that her contribution towards the campaign should be recognised by the court.

Considering the above sentencing authorities, and all the circumstances of this case, the starting point, according to the tariff, should be imprisonment for a period of 16 years and 6 months, with an enhancement for the international element of 11 months, the overall starting point should come to 17 years and 5 months’ imprisonment.

Due to her clear record and to show leniency for the sake of her young children and her contribution towards the worthy cause of Father John, I am prepared to adopt a reduced starting point of 16 years and 6 months. I give the defendant a full one-third discount for her guilty plea, which reduces the sentence to 11 years. I accordingly sentence the defendant to a term of imprisonment for 11 years.