HKSAR v. Cardoso Nikki

HCCC 257/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 257 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 me to one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug concerned, background of the defendant and the mitigation put forward on his behalf.

The facts of the case may be summarised as follows. On 28 November 2015, the defendant arrived in Hong Kong by air from South Africa via Doha. He was intercepted by customs officers at the Arrival Hall of the Hong Kong International Airport. He was pulling a black suitcase and carrying a black briefcase. Nothing illegal was found in the suitcase. Upon search of his small black bag, cocaine was found concealed underneath the lining. The defendant was arrested.

The dangerous drug which the defendant trafficked in was a total of 1,192 grammes of a powder containing 726 grammes of cocaine. The market value of the drug was about $1.2 million.

I was told that the defendant was born in South Africa and holds the passport of that country. He is 40 years of age. He is married and has a daughter now 7 years old. He attained education up to university level and was engaged in a part-time job on webpage development earning around 5000 rand a month. He did not have any previous conviction record in Hong Kong.

In mitigation, learned defence counsel, Mr Hemmings, asked for a lenient sentence, stressing the following matters.

(i) The injury in the heel which the defendant suffered some 10 years ago, resulting in his difficulties in walking and further treatment would still be required.

(ii) The defendant’s willingness to assist the authority by providing information, and so far, little follow-up actions have been taken up by the authority.

(iii) The defendant and his family, whom Father Wotherspoon had visited earlier this year, have agreed to participate in the campaign which the Father launched in warning people of various notorious places against being exploited by drug syndicates.

For cases of trafficking in cocaine, the Court of Appeal held, in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.

In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes. In a subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes.

Since the defendant brought dangerous drugs into Hong Kong, it is an aggravating factor. In my judgment, the starting point should be enhanced by 18 months. Having considered the whole circumstances, I adopt an ultimate starting point of 22 years.

The defendant is entitled to a one-third discount for his guilty plea and previous clear record. I have considered very carefully whether the defendant is entitled to any further discount for what had been put forward in mitigation on his behalf.

As regards the defendant’s willingness to offer assistance to the authority, the fact is that there is no fruitful result. It may not be something unexpected as the information he is to provide will be in relation to people aboard. Nevertheless, there are clear authorities that in the circumstances, the defendant cannot expect the court to afford him any further discount. I see no reason to depart from these authorities.

As regards what has said in relation to the campaign launched by Father Wotherspoon, I have had regard to the case of HKSAR v Akinyi Grace Sylvia, CACC 324/2015, in which the Court of Appeal recognised efforts of such nature amounts to assistance in combatting drug trafficking. Even though the assistance was not rendered directly to the authorities, it was recognised that the government and the community benefitted from it ultimately. The campaign of Father Wotherspoon should be praised.

In that case, the Court of Appeal did not interfere with an otherwise rightly decided sentence and held that it would be a matter for the Executive to determine whether assistance of this kind by serving prisoners should be rewarded by use of the Executive’s power of clemency.

The defendant in the present case is not in exactly the same position as he is not yet a serving prisoner and the court is not considering whether to interfere with the sentence already imposed. A proper sentence should be imposed to reflect the criminality of the offence the offender had committed.

Whilst the efforts of the defendant should be recognised, it is not the same situation as a defendant who provided valuable information against a specific crime which led to a fruitful result. In addition, what I, at this stage, can take into account is only the state of affairs which Mr Hemmings had told the court about this matter.

In my judgment, the matter should best be left to the Executive to assess the degree of contribution and its effectiveness when the defendant participates further in the campaign and decide whether such assistance should be rewarded by use of the Executive’s power of clemency.

In all the circumstances, having regard to what Mr Hemmings has said on behalf of the defendant, I am of the view that one-third is the extent of discount the defendant is entitled to in this case.

For the reasons I have mentioned, I sentence you to an imprisonment term of 14 years and 8 months.