HKSAR v. Nakeli Mokhele Abel

HCCC 94/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 94 OF 2017

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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 and was committed to the Court of First Instance for sentence. 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 involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. On 26 June 2016, when the defendant arrived by air at the Hong Kong International Airport from Benin via Kenya and Thailand, he was suspected to have internal concealment and was sent to a hospital. There, he discharged 61 packets of dangerous drug and later one more packet in the reception centre.

Under caution, he said he was given the packets by an African male in Benin. He did not know what exactly was the content. For a promised reward of US$3,000, he swallowed the packets and came to Hong Kong. The air tickets were arranged by the man. He had already received $1,500 and this sum was with him when he was intercepted.

The dangerous drugs the defendant trafficked in was 1,209.5 grammes of a solid containing 780.7 grammes of cocaine. The market value of the drugs was about $1.4 million in June 2016.

I was told that the defendant is now 35 years old. He holds a South African passport. He is married with four daughters aged from 5 to 15, all still studying. He was a businessman selling garment and children’s wear. He did not have any criminal record in Hong Kong.

In mitigation, learned defence counsel, Mr McGowan, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity; he was only a drug mule who had been exploited in the circumstances of his desperate financial situation; and the defendant’s participation in the campaign of Father Wotherspoon. I was told that the defendant was only aware that he was carrying drugs at the last moment and he was under a certain degree of threat which Mr McGowan’s assessment is that it fell below the degree of duress.

The court was also told that the defendant was the sole breadwinner of the family. Since his arrest, the family has lost support and has to live in a church. All the belongings of the defendant at the old home had been taken away by other people. The defendant is now remorseful and has engaged in some correspondence course to equip himself to turn over a new leaf.

Father Wotherspoon had produced a letter in which he said the defendant had been supportive of the campaign and has tried, through contact with his family and friends, to warn people in Africa about the danger of trafficking drugs to Hong Kong. The defendant has written a lengthy letter which was posted in the Father’s special website in which he gave strong warning to people. The Father expressed his opinion that the campaign bears result as figures show that the number of drug mules from Africa has been dropping.

The defence produced a letter written by Sister Gloria Patricia Valencia in which she pleaded leniency, stressing that the defendant is repentant for his naivety. The defendant also wrote a letter in which he has expressed remorse.

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 the 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. There is no reason to justify any departure from the sentencing tariff.

In addition, I have to take into account the fact that the defendant took drug into Hong Kong which is an aggravating factor. For this aggravating factor, the starting point should be enhanced by 18 months.

Having considered the whole circumstances, in my judgment, an ultimate starting point of 22 years and 3 months is appropriate. The defendant is entitled to a one-third discount for his guilty plea, previous clear record and the remorse he has expressed.

In relation to the participation of the defendant in the campaign of Father Wotherspoon, the Court of Appeal in HKSAR v Akinyi Grace Sylvia, CACC 324/2015, 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 government and the community benefited from it ultimately.

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 awarded 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.

The campaign of Father Wotherspoon should be praised. Whilst the efforts of the defendant should also be recognised, the situation is not the same as one where a defendant has provided valuable information in relation to a specific crime which led to a fruitful result. For the time being, the involvement in the programme by the defendant cannot be described as particularly distinctive and effective. The Executive will be in the best position to assess the degree of contribution and its effectiveness if the defendant participates further in the campaign and decide whether such assistance should be rewarded by use of the Executive’s power of clemency.

However, in the meantime, as a gesture of encouragement, I am prepared to give the defendant a further discount of 4 months. Having considered the whole circumstances, including mitigation submission and the further information provided by Father Wotherspoon, in my judgment, this is the extent of discount the defendant is entitled to.

For the reasons I have mentioned, I sentence you to an imprisonment term of 14½ years.