HKSAR v. Boqwana Ntando

HCCC 253/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 253 OF 2016

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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 an offence of trafficking in a dangerous drugs contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

You admitted on 20 September 2015, at the Hong Kong International Airport, on Lantau Island, in Hong Kong, you unlawfully trafficked in 3,049 grammes of a powder containing 1,277 grammes of cocaine.

On that day in question, you had arrived in Hong Kong from Johannesburg, South Africa. You were intercepted for customs clearance, and upon inspection of your suitcase, three slabs of the drug cocaine as stated in the charge were found concealed at the bottom of your suitcase.

At the time of arrest, you had cash of US$400, and less than HK$30’s worth of other foreign currencies on you.

In a video-recorded interview under caution, you claimed that you came to Hong Kong to buy clothes. You ran a business back home earning US$400 per month, and you denied knowledge of the drugs in the suitcase. You said the suitcase was bought for you by your friend, and another friend packed the suitcase. You accepted the cash found on you was yours, and the US dollars was to pay for your hotel and food.

The estimated street value of the dangerous drugs seized was HK$3,219,744.

You now accept and admit that you had knowledge that the dangerous drugs seized at the time when you arrived in Hong Kong, and that you possessed those drugs for the purpose of trafficking.

In mitigation before me today, your counsel, Mr Jim Chandler has said a lot for you in mitigation. I have also received letters from yourself and your eldest daughter. I have also received a letter from Father John Wotherspoon.

Mr Chandler has also referred me to the leading tariff case of Lau Tak Ming.

Madam, you are now 27 years of age. You have no previous convictions either in Hong Kong or South Africa. You have three small children aged 2, 3 and 8. Your father is deceased, and your mother is unwell. You have attained secondary school level.

Your letter to me is very detailed as to your background and the difficult life that you have endured up until the time you committed this offence. I can see that this letter is written with much regret that you have committed this offence and that you have felt very sorry you have left behind your three children and your mother. I can see that since you left school, you have not found making a living very easy. You have had numerous jobs. But the underlying factor of these jobs was as a caring mother and daughter, to provide food and a roof over your children and mother’s head.

It appears that what triggered you to commit this offence was as a result of the debts you were heavily laden with because of the passing of your sister and the ill-health of your mother. You wanted to set off your debts by making this trip to Hong Kong to deliver these drugs.

In the manner to which you have written this letter, I have no doubt that you are deeply regretful that you took the choice to traffic drugs into Hong Kong, and that you are sincere in saying that if you are given a second chance, you would not commit this offence again.

As I mentioned in this hearing, it is not for me to give you a second chance. I am bound by the laws in Hong Kong which have been laid down by the Court of Appeal. As Mr Chandler says, trafficking in this very large amount of cocaine warrants a very lengthy term of imprisonment. These terms of imprisonment are laid down in guideline cases, in Lau Tak Ming and Abdallah Anwar Abbas, which this court is bound to follow.

I understand that you have been assisting Father Wotherspoon in his campaign to stop these traffickers from using drug mules like yourself in debt-laden or difficult circumstances, in coming to Hong Kong, and I fully appreciate Mr Wotherspoon’s very hard work and success in his campaign. I am informed that you have been helping him as well.

Mr Chandler has asked me to acknowledge this assistance to him in dampening down that trade of using people like yourselves as drug mule, and provide a discount or reduction of sentence upon your assistance.

In my view, I am not able to evaluate what assistance people like yourself give to Father John Wotherspoon, and even, in my view, I find it difficult to warrant your reduction when the Court of Appeal have laid down matters such as ill health, young age, elderly, or the maimed, which are not mitigating factors such as to warrant a reduction, and I therefore cannot correlate that with your assistance to Father Wotherspoon and provide you with a reduction in this case.

I accept that one or two of my learned brother has reduced the sentence on this basis. They are persuasive upon me, but are not binding. In my view, I feel that I am unable to reduce whatever starting point, to give you a reduction from the starting point as a result of your helping Father Wotherspoon in spreading the message amongst relatives and friends in South Africa.

In all these cases, it saddens me to see that people like yourselves are targeted. But it is not only people like yourselves. As I mentioned, from countries of Africa, but locally, they would target the very young, or the ill, or the maimed. It is unfortunate that people like you are targeted are brought to the courts and have to face such severe and lengthy sentences. What is clear to me, through all these cases, is that obviously the attraction is the quick and fast money to be earned in committing these offences. Earning quick and fast money is almost always an illegitimate way to earn money.

I am sure you know through your hard work and life in South Africa how hard it was to earn money, but you earned sufficient to support your family. But when money comes quickly and at little cost, it results, in most times, being a big risk that you take, that you are committing an offence and therefore looking at a sentence which will be severe.

The greatest mitigating factor, of course, is your plea of guilty, and for that you will be granted the one-third discount.

In following the guidelines laid down in the case of Abdallah, you were trafficking in 1,277 grammes of cocaine, that falls within the bracket of 1,200 to 4,000 grammes, of which the starting point after trial would be one between 23 years and 26 years’ imprisonment.

Had you been convicted after trial in this case, I would have adopted a starting point of 23 years’ imprisonment. You had brought these drugs into Hong Kong from South Africa. As also laid down in Abdallah, this warrants an enhancement to the starting point, as this is considered an aggravating factor, and in those circumstances the starting point shall be enhanced by a further 2 years’ imprisonment, making the sentence point, had you been convicted after trial, to one of 25 years’ imprisonment.

Defendant, your plea of guilty warrants the one-third discount means that you will therefore serve a sentence of 16 years and 8 months’ imprisonment.