HKSAR v. Zalwango Sarah

HCCC 298/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 298 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 pleaded guilty before a magistrate to one count of trafficking in a dangerous drug and was committed for sentence.

The total quantity of dangerous drugs involved in this case is 1.72 kilogrammes of cocaine. The estimated street value of the cocaine amounts to around HK$2.3 million.

The defendant is a Uganda citizen. On 27 December 2015, she was refused to land by Immigration officers when she arrived at the Hong Kong International Airport from Dubai. Upon search of a plastic bag carried by the defendant, cocaine pellets were found inside two metallic cans with the words “Scotch Whiskey” printed on them.

In a cautioned interview, the defendant said she took an Emirates flight to fly from Uganda, via Dubai, to Hong Kong for business. She met a man known as Richard in a mall in Dubai and he asked for her help to carry something to Hong Kong for him for a reward of US$5,000. They took the same flight to Hong Kong and she was supposed to pass the things back to Richard after passing through the immigration.

The defendant is 30 years old. She operated a boutique in Uganda earning around 3,000 to 4,000 US dollars per month. She is single and has a daughter. She has no criminal record in Hong Kong.

In mitigation, Mr Wai, counsel appearing for the defendant, submitted that the defendant has pleaded guilty before the magistrate, she has shown her remorse, and he urged this court to adopt the lowest possible starting point within the permitted range and to give the defendant a full discount for her guilty plea.

On behalf of the defendant, Father John Wotherspoon has also written to this court to ask for a lenient sentence for the defendant. Father Wotherspoon is renowned for running a campaign in Hong Kong to stop drug traffickers coming to Hong Kong from East Africa, including Uganda. The campaign mainly consists of letters from inmates in Hong Kong which the Father has put on his website and referred to media and blogs in other countries with a view to expose to people in East Africa the dire consequence they might face in being used to traffic dangerous drugs to Hong Kong.

The Court of Appeal and also fellow judges in the Court of First Instance have commended Father Wotherspoon for his work in their judgments. According to him, the defendant and her family in Uganda have been most actively supporting his campaign. He and the defendant ask this court to take into account the defendant’s contribution to the campaign in considering her sentence. Father Wotherspoon has, on previous occasions, helped many other drug offenders in Hong Kong who came from East Africa, pleading for a lenient sentence.

The Court of Appeal in HKSAR v Akinyi Grace Sylvia, CACC 324/2015, 5 May 2016, has considered whether a defendant should be awarded leniency in the same situation. While commending the initiative of Father Wotherspoon as benefiting Hong Kong society, the Court of Appeal took the view that if such initiatives require the participation of convicted drug traffickers in order for them to be effective, then it will be a matter for the Executive to determine whether such assistance should be rewarded by use of the Executive’s power of clemency.

However, the mitigation in this regard has not been advanced before the sentencing court but only to the Court of Appeal in that case. This is the reason why the Court of Appeal had this comment in their judgment. In the present case, this particular mitigation has been placed before me and I can see no reason why I cannot take this into account in considering sentence.

Trafficking in dangerous drugs is an extremely serious offence. People committing the offence will inevitably face a long imprisonment sentence. The length of imprisonment imposed depends mainly on the quantity of dangerous drugs involved. For trafficking in cocaine, in considering sentence, this court should follow the tariff laid down by the Court of Appeal in The Queen v Lau Tak Ming [1990] 2 HKLR 370 and also HKSAR v Abdallah [2009] 2 HKLRD 437. As per the tariff set out in Abdallah, for trafficking in cocaine of a quantity between 1.2 kilogrammes and 4 kilogrammes, a starting point of 23 to 26 years’ imprisonment should be adopted.

In the present case, the quantity involved is 1.72 kilogrammes. The appropriate starting point in respect of the quantity involved should be some months more than 23 years’ imprisonment. Taking into account the defendant’s mitigation, in particular the circumstances she came to have committed the present offence and her contribution to the campaign to stop drug traffickers coming to Hong Kong from East Africa, I would adopt the lowest starting point in the range of 23 years’ imprisonment.

The defendant imported the cocaine into Hong Kong and as rightly acknowledged by Mr Wai, this is an aggravating factor. Making reference to the guideline set out in HKSAR v Chung Ping Kun, CACC 85/2014, 2 July 2014, for this quantity of drugs involved, the sentence should be enhanced by 2 years.

Full discount should be given for the defendant’s guilty plea. The defendant’s sentence shall be reduced from 25 years’ imprisonment to 16 years and 8 months.