HKSAR v. Ngugi Sarah Muthoni

HCCC 66/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 66 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 to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court 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 her behalf.

The facts of the case may be summarised as follows. Subsequent to discovering cocaine in a parcel posted from Brazil, a controlled delivery was made to the recipient’s address. When the officer posing as a postman was approaching the building, the defendant greeted him, saying she was helping her sister Esther to collect the parcel. However, she could only produce an international social service document in the name of the alleged sister, but not any identity document issued by authority. She asked the officer to talk to a man over the phone. The officer did so and, after that, handed over the parcel to the defendant. After the defendant had received the parcel, she was arrested.

Under caution, the defendant said the parcel belonged to a man known as “KC” and it was KC who instructed her to wait and collect the parcel. She knew nothing.

I was told that the defendant is a Kenyan businesswoman, now 48 years of age. She is divorced and has one daughter. She did not have a criminal record in Hong Kong.

In mitigation, Ms See informed the court that the reason the defendant committed the offence was that she felt obliged to assist her friend to pick up the parcel as she had been staying at her friend’s home. The defendant also admitted that she was tempted by the promised reward as she needed money to support her mother who, sadly, had passed away recently during the custody of the defendant and this had caused great pain to the defendant.

Ms See urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity. She had been co-operative with the authority. She had tried to offer assistance with the authority by providing four statements, though no fruitful result has yielded, and that she had participated in a campaign of Father Wotherspoon. As a result, she was subjected to certain threat. Ms See also urged the court to take into account the difficulties which the defendant encounters in custody as a foreigner.

The dangerous drug which the defendant trafficked in was 495.5 grammes of a solid powder containing 338.7 grammes of 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 are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of 12 to 15 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is 200 to 400 grammes.

I have to take into account the international element in the case. For this aggravating feature, the starting point should be enhanced by 9 months. Having considered the whole circumstances, in my judgment, an ultimate starting point of 14 years and 9 months is appropriate.

The defendant is entitled to a one-third discount for her guilty plea and her previous clear record. I will give the defendant a further discount of 3 months for her assistance, though it yielded no fruitful result, as a gesture of encouragement.

I have considered her participation in the campaign of Father Wotherspoon. The Court of Appeal in HKSAR v Akinyi Grace Sylvia, CACC 324/2015 recognised the efforts of such nature amounts to assistance in combating drug trafficking. Even though the assistance was not rendered directly to the authorities, it was recognised that the government and the community benefited from it ultimately. However, 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 she is not yet a serving prisoner and the court is not considering whether to interfere with a 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 effort 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 program of the defendant cannot be described as particularly distinct and effective. The Executive will be in the best position 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 power of clemency.

I note the situation of the defendant as a result of her participation. There is no strong indication that the defendant is really under serious threat of her safety. In all the circumstances, I am prepared to give the defendant a further discount of 1 month for this matter.

As regards whether further discount should be given as the defendant is a foreigner, I have had regard to cases such as HKSAR v Suppiah, CACC 39/2016, SJ v Tse Ki Wu, CAAR 13/2001 and HKSAR v Hong Chang Chi [2002] 1 HKC 295. In my judgment, the defendant is not entitled to a further discount for this matter.

In all the circumstances, I do not consider there is anything else which justifies a further discount to the defendant.

By reason of the matters aforesaid, you are sentenced to an imprisonment term of 9½ years.