HKSAR v. Rodin

HCCC 29/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 29 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 7 November of this year, after a trial before me, the defendant was convicted of the one count on the indictment, namely trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 in the laws of Hong Kong.

The drug concerned was cocaine. The quantity was 825.1 grammes. It had a street value in Hong Kong of sum HK$1,200,000

The facts which gave rise to the charge against the defendant and his ultimate conviction can be succinctly stated as follows.

On 11 June 2016, the defendant, a Madagascan male arrived in Hong Kong on board a flight from Addis Ababa in Ethiopia. He had earlier flown from Madagascar to Nairobi in Kenya, and from Nairobi to Addis Ababa.

Upon his arrival in Hong Kong, he was denied entry by the Immigration Department officers, apparently because he had no apparent means of support. As is the usual practice in a situation like that, he was to be repatriated to the destination from which he had arrived. But prior to that, his luggage had to be cleared by the Hong Kong Customs & Excise officers.

He was taken to the Customs Hall red channel, an officer who had been assigned to examine the defendant and his luggage noted that in a black handbag or shoulder bag, was a brown wallet which was suspiciously large in its size and weight. The officer’s suspicions proved correct, because after it was examined by an X-ray machine, it was apparent that there was something within the perimeters of the wallet. An incision was made in the stitching, and a white powder was detected. That white powder proved positive to a test for cocaine.

As a direct consequence, the defendant was further and more thoroughly searched. As it transpired, each of the shoes that were worn by him had concealed in their soles between the sole and the base of the shoes, 500 grammes or thereabouts of cocaine.

The defendant was arrested, and as is his right, he declined to answer questions upon his arrest.

What had alerted the officers to the shoes of the defendant was that they were suspiciously heavy. The quantity of cocaine in the shoes and the wallet were subsequently analysed by the government chemist, and were, as I have indicated, that amount which appears in the indictment.

In the course of the arrest of the defendant, amongst a number of items that was seized from him was a mobile telephone. Officers investigating the defendant examined a number of exchanges which appeared in that mobile telephone. They were what are described as WhatsApp messages. Probably the most significant of those was a message from a person in Madagascar asking the defendant whether the shoes were heavy. The defendant’s reply was “very heavy”, and it is no doubt a matter which was very relevant when the jury came to determine whether or not the defendant knew, as this was the only issue in the trial, whether the contents of the shoes and the wallet were cocaine.

The defendant was convicted unanimously by the jury. It now comes for me to pass sentence upon him.

In the course of the trial, and today, I have been reminded by Mr McGowan, he the defendant gave detailed information about his background. He came from, as is properly describe, a poor and possibly tragic background. Undoubtedly, the circumstances as described by him and confirmed by Mr McGowan, were unenviable. The family structure deteriorated with the father leaving. His schooling was significantly interrupted, and it was only upon the intervention of some Seminarians that he was able to resume any form of formal education.

With the assistance of those in the Seminary, he was able to complete the primary and secondary education, and this continued at a tertiary level to obtain diplomas and then a masters diploma in philosophy.

Sometime before the commission of these offences, he had obtained employment in a lyceum or school in Madagascar, both working in the library and assisting with students.

How it came to be that he was engaged in the trafficking of dangerous drugs is as follows. According to the defendant, he was introduced by his cousin to the proprietor of a business in Madagascar, who engaged him in a role as a representative to visit places like Hong Kong.

That engagement, according to the evidence given by the defendant, came about in a very short space of time, a matter of 48 or 72 hours. It was after he had been given this employment that he was provided with the clothing that he wore, including the shoes and the wallet, which he brought with him when he came to Hong Kong.

Mr McGowan has properly described the defendant as being naïve. The naïveté is manifest if his account is true, in the circumstances as to how he became involved in this. And nevertheless, as Mr McGowan rightly recognises, drug couriers are frequently at the naïve end of the drug trafficking trade. The sentencing guidelines provided by the Court of Appeal in Hong Kong reflect the fact that couriers must be properly sentenced for their involvement in drug trafficking.

Were the defendant to be determined to be a major player, an organiser or otherwise, then the authorities, as they stand, provide for enhancement of his sentence by reference to that very fact.

In the present circumstances, given the quantity and value of the drugs concerned, it is apparent to me, and to the jury, that the defendant must have known that what he was bringing to Hong Kong was a valuable quantity of a dangerous drug.

The sentencing guideline for trafficking in cocaine, insofar as this defendant is concerned, are in two parts. There is the part that refers to the quantity of the drugs involved in the trafficking. Those guidelines are provided by the Court of Appeal in two cases of Lau Tak Ming and Rojas. Bearing in mind the quantity of the cocaine involved, the starting point for sentence after trial for this quantity of drugs would be one of 21 years.

The second part of the sentencing quotient is to determine how further that starting point should be enhanced by the aggravating factor of the drugs being imported into Hong Kong. In my opinion, in the circumstances of this case, an enhancement of 1 year is entirely appropriate in the circumstances.

Mr McGowan has properly advanced in his mitigation the defendant’s personal life and personal circumstances. It is correct to say, as I have said earlier, his background and his childhood were undoubtedly tragic. But regrettably, this is frequently the case for those who are ultimately recruited into the trade of trafficking in dangerous drugs. It is regrettable, and it is unfortunate that the defendant, at this young age, has succumbed to that temptation. Unfortunately, there is nothing said by Mr McGowan which would allow me to reduce the starting point and the degree of aggravation from that which has been recommended by the Court of Appeal.

In those circumstances, the sentence which I impose is one of 22 years’ imprisonment.