HKSAR v. Nkopane Augustine Ikhopoleng

HCCC 341/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 341 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 has pleaded guilty to one count of trafficking in a dangerous drug, namely 2,507.3 grammes of a solid containing 2,099.2 grammes of cocaine.

The defendant arrived at the Hong Kong International Airport on 5 February 2016 from Dubai. Upon interception by Customs, Customs officers found some packaged food items, specifically, two cans purporting to contain Oreo cookies and four cans purporting to contain tealeaves and coffee powder. Upon further inspection, these cans were found to contain the drug named in the indictment.

The defendant, upon being cautioned, claimed that she came to Hong Kong for shopping. The defendant said that she had a Nigerian boyfriend of three years who was living in India, called Oge Tony. He gave her money to set up her hairpiece trading business in South Africa. She expressed her wish to come to Hong Kong and Oge Tony then bought flights and accommodation for her and he told her that she would be going to Hong Kong via Dubai and that she would have to take something to his friend, Kingsley, who lived in Hong Kong. The defendant said this person Kingsley then transferred US$1,500 to her in South Africa.

Upon her arrival in Dubai, a friend of Oge Tony, called Peter, came to her hotel room and gave her the cans which were subsequently found to contain the cocaine. The defendant claimed that she did not open these cans to see what was inside as she was rushing to get on her flight to Hong Kong.

Upon the defendant’s arrest, a printout of a hotel reservation in Hong Kong was seized from the defendant. The defendant’s mobile phone was seized and some WhatsApp messages were found in her phone. In one of the messages from Peter, he told her that she had to act with confidence at Immigration and to delete their conversation before getting to Immigration. Messages from Tony were also found and in one of them, Tony asked what the defendant’s surname was and the defendant refused to send him a page of her passport.

Also found were WhatsApp messages from someone called Henry and according to the defendant, she told the Customs officer that Henry was her boyfriend in South Africa. In these messages, Henry was trying to warn the defendant that what she was doing was deadly and that she was playing with her life.

The defendant has a clear record in Hong Kong. She is aged 36 and is a South African national. As Mr Surman very correctly pointed out, there is not much by way of mitigation in most cases of this nature, except that the main mitigation would be that the defendant had pleaded guilty at the earliest opportunity which is a sign of her remorse.

Mr Surman further submitted that her remorse is genuine and that she finally, whilst in prison on remand, realised the evil that drugs can do and that she has informed Mr Surman to inform this court that she deserved every day of imprisonment that is given to her. Perhaps the defendant, on reflection, would think that her boyfriend Henry in fact had given her very wise advice which she did not choose to follow.

The sentences which the courts in Hong Kong are bound to mete out to offenders like the defendant are serious because Hong Kong has to protect our border against drug traffickers. The courts in Hong Kong, particularly the Court of Appeal, have laid down guidelines in relation to sentencing for trafficking in cocaine and heroin in the case of Lau Tak Ming in 1990, and more recently in the 2009 case of Abdallah, the Court of Appeal had not only confirmed the guidelines in Lau Tak Ming but also dealt with guideline sentencing for very large quantities of these drugs.

As I have said, the sentencing guideline that has been laid down for trafficking in heroin and cocaine is that for trafficking in between 1,200 to 4,000 grammes would merit a starting point sentence, after trial, of 23 to 26 years’ imprisonment. Therefore, in considering the quantity that was found on the defendant, 2,099.2 grammes would merit a starting point sentence of 24 to 24½ years after trial. In this case, I will take a starting point of 24 years.

In view of the fact that the defendant had pleaded guilty at the earliest opportunity, I accept that it is an indication of her genuine remorse and so she deserves the full one-third off which will lower the sentence to 16 years’ imprisonment.

In the case of Abdallah which I have earlier mentioned, the Court of Appeal also indicated that the sentence should be enhanced when there is an international element and the rate of enhancement would be not less than 2 years for amounts above 1 kilogramme. So to the 16 years, I will add 2 years for the international element, thus bringing it to 18 years’ imprisonment.

The defendant is sent to prison for 18 years.