HKSAR v. Higgs Fabienne

HCCC 423/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 423 OF 2015

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

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COURT: The defendant was charged with one count of trafficking in a dangerous drug. The drug involved was a bit less than 2,300 grammes of actual cocaine. The defendant pleaded guilty and admitted the Summary of Facts.

I do not think I need to spell out the details here. It was simply a case that the defendant was intercepted by Customs officers at the airport and, upon a search, the drugs were found hidden inside her luggage. The retail value of the drugs seized was about HK$4.5 million.

The defendant is now 28 years of age. She is a citizen of South Africa and she has no criminal record in Hong Kong. I would accept that she also has a clear record in her own country.

Mr Dunn, in his mitigation for the defendant, told the court that the defendant was born in South Africa. She used to be a teacher and later became involved in the business of safety equipment. The defendant is single and her family, including her mother and grandmother, are living in Johannesburg. Mr Dunn pointed out that the defendant’s company encountered some financial trouble and the defendant mistakenly thought that taking drugs to Hong Kong for others could be a way to solve her financial problems.

Mr Dunn emphasised that the defendant did not realise the serious consequences of carrying drugs to Hong Kong and the damage it could bring to other people. Now she realises the ill effect of her conduct and she is genuinely remorseful.

In this regard, she had taken actual steps to assist Father John by using her knowledge and experience about the penalty of drug trafficking in Hong Kong to warn the people in South Africa of the danger and consequence of drug trafficking here. Mr Dunn said that Father John’s campaign had already shown some success in curbing the influx of the so-called drug mules from Africa to come to Hong Kong.

Counsel stated that the defendant was a naïve young lady who had made a terrible mistake and would now be facing a long sentence. But she came from a good family background and had proper jobs before. Now, with her assistance given to the campaign created by Father John, counsel invited the court to be lenient to the defendant.

Mr Dunn had submitted several mitigation letters written on behalf of the defendant. They came from Father John, the defendant’s aunt, principal of Mulbarton Primary School, defendant’s mother and also her grandmother. I have carefully read all these letters. While I find it hard to accept that the defendant can be described as a naïve person as her counsel has done, the picture that emerged from these letters indicated that what the defendant had done this time could be said to be out of character.

Furthermore, I have every sympathy for the defendant’s mother and especially her grandmother. I have not been told of the grandmother’s age but it must be devastating in her condition and age to learn about her grandchild’s arrest and incarceration in a faraway place such as Hong Kong. I can also feel the pain for the defendant’s mother when she has to endure yet another blow in her life.

Mr Dunn has referred this court to a case HCCC 145/2016. That was a case decided by Deputy Judge Woo which had taken place just in May this year. Mr Dunn had drawn my attention specially to the matter that Deputy Judge Woo had reduced the starting point by 1 year because Madam Otieno Akoth, the defendant in that case, had made similar contribution in Father John’s campaign.

I have adjourned the sentence to this afternoon in order to go through the various letters and to reflect upon the issue of contribution to the campaign as a factor in reducing the starting point of the sentence.

In the meantime, Mr Dunn has dutifully submitted, in written form, further mitigation for the defendant. In one of the paragraphs, that is paragraph 9 of his written submission, Mr Dunn said the following:

“However, the deterrent effects of these draconian measures is minimal if potential traffickers are unaware of them. Traffickers arrested bringing drugs through the airport frequently express total shock when informed of the sort of sentence they are facing. Many of them had been told by the people who sent them that, at worst, they can expect 2 to 3 years’ imprisonment. It seems clear that the deterrent aspect of Hong Kong sentencing policy for drug traffickers is not working. At least not for the potential traffickers from Africa.”

In my view, Mr Dunn’s analysis oversimplifies this situation and I do not agree with his conclusion that the deterrent aspect of the Hong Kong courts’ sentencing policy for drug traffickers is not working, or that it is only working in the context of Hong Kong.

First of all, I find it hard to accept that any adult in African countries will believe that trafficking drugs to Asia would not attract a heavy sentence. In any event, nowadays, with the convenience of internet research, anyone who wants to find out any such information can easily do so by just a few clicks of the mouse. After all, Father John’s campaign is apparently also promoted through the internet.

It appears that Mr Dunn tries to raise this issue of helping in the campaign to the same level as contribution to the authorities by way of giving actual trafficking information. While I accept that Father John’s campaign is praiseworthy and I certainly hope that he shall continue and perhaps even enlarge the objectives of his work, but in terms of being a factor for any sentencing reduction, I cannot put a defendant’s effort in this type of campaign on an equal footing as some actual assistance rendered to the authorities.

Coming back to the sentence decided by Deputy Judge Woo, with respect to his immense experience, I could not agree that contribution to the campaign is a factor that could reduce the starting point, and in any case, if one is to read the relevant paragraphs in Deputy Judge Woo’s judgment, the 1 year reduction as he described for the starting point, actually included the defendant’s clear record, her personal circumstances, and then her active participation in the campaign.

My view is, the starting point should be based mainly on the nature and amount of drugs plus any other relevant aggravating factors such as the presence of the international element. As to the issues of clear record, “active participation” or others, those are matters for the court to consider in mitigation.

The amount of cocaine in the present case is 2,281 grammes. Considering the authority of Abbas, CACC 304/2008, I would adopt the primary starting point of 24 years. In relation to the international element, in fact, the Court of Appeal made it quite clear that the enhancement for amounts above 1 kilogramme will not be less than 2 years (see paragraphs 42 and 43 of the same judgment).

However, after consideration, in the present case, I am prepared to increase by only 1 year as in the case decided by Deputy Judge Woo. Therefore, the enhanced starting point shall be 25 years.

I shall give the full one-third discount to the defendant for her plea and remorse. That would reduce the term to 16 years and 8 months.

Father John said in his letter that he hoped the defendant’s support for the campaign can qualify for mitigation by the court as it appeared that less African mules are caught in Hong Kong recently. I accept this is a statement made in good faith and to some extent, I agree that the defendant’s effort should be recognised, and in fact I truly hope that her support for Father John’s programme is not a short-term act aimed only for a reduction of her sentence.

For the defendant’s background and her contribution to Father John’s campaign, I would further reduce the sentence and the sentence I shall impose is one of 16 years.