HKSAR v. Pencil Ncebakazi

HCCC 259/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 259 OF 2016

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

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COURT: You have pleaded guilty and stand convicted of one count in trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you are formally convicted on that plea.

The drugs in question, Ms Pencil, were 151 grammes of cocaine which you brought into Hong Kong from Johannesburg on 20 December of last year by placing them inside your vagina.

The value of those drugs in Hong Kong at that time was $390,816.

You are a South African citizen and 29 years of age, and according to the antecedents record, unemployed, but Mr Egan tells me that you have a 2-year-old daughter who will, no doubt, suffer greatly from your incarceration in this country as you, indeed, will suffer too from being separated from her.

You are well placed to assist Father Wotherspoon in his endeavours to educate your fellow citizens in South Africa of the foolhardiness of trafficking in dangerous drugs. The price that you will now have to pay, and the harm done to others in Hong Kong by your act, is not worth the gain that can be made from trafficking.

Mr Egan has urged upon this court to consider the assistance that you and others like you can give to Hong Kong by discouraging other members of your family, your friends or members in your community from doing as you have done, and he asked the court to do what it can to mark that assistance so that others in your position before the courts in Hong Kong will also consider participating in this very worthy endeavour. Father Wotherspoon has provided the court with a letter which indicates that there has been a positive and significant effect from this programme with far less drug mules from certain African states, and one hopes that that will increase.

I believe that the High Court should take note of what is being done. It is commendable, and I ask you, please, to play your part in the years to come during your sentence because you will have to serve a sentence for this very serious offence.

Ms Pencil, for the importation of 151 grammes of cocaine, in accordance with the guidelines set out in R v Lau Tak Ming [1990] HKLR 370, the guideline starting point for trafficking after trial, in between 50 and 200 grammes, is 8 to 12 years’ imprisonment. The appropriate starting point for 151 grammes in sentencing after trial, is 10 years and 8 months’ imprisonment according to that guideline.

There is also a significant aggravating feature which I cannot ignore because you brought these drugs into this country from abroad. There is an international element to this offending, and for that international element, I must enhance your sentence, but I will do so by just 4 months. So that the total sentence would be, according to the guideline, before any other discount, the total sentence would be 11 years’ imprisonment.

But I have taken into account all that your counsel has urged upon your behalf, and the fact that you have no previous record in Hong Kong, your age, the fact of your young child and, as I have said, even the fact that you are serving a long sentence away from home, these factors alone cannot reduce the sentence (I have already indicated) as this is a very serious crime for which the Court of Appeal had said that a deterrent sentence is required and only the most exceptional personal circumstances will reduce the sentence below the guideline that I have mentioned.

However, I do believe that positive and on-going efforts to stop others from doing as you did under the guidance of a programme run by Father Wotherspoon is something which should be positively encouraged as the deterrent element of sentencing in this area of the law appears to have little effect upon the importation of drugs into Hong Kong.

Giving you credit for the efforts that you have made, and no doubt you will make in the future, in that respect, I am prepared to discount your sentence by 1 year. Giving you a full one-third discount for plea which was entered at an early stage, you will go to prison for a period of 6 years and 8 months.