HKSAR v. Kerr Winston Roy

HCCC 297/2018

[2018] HKCFI 2791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 297 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Now, the defendant, Kerr Winston Roy, was charged with one count of trafficking in a dangerous drug, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before the magistrate and was committed to the Court of First Instance of the High Court for sentence.

The admitted facts disclose that the defendant travelled from Japan to Hong Kong on 28 December 2017 and was checked into a hotel in Tsing Yi, and on 29 December 2017, hotel staff found the defendant unresponsive in the room which was locked. There was a strong smell of faeces inside the room and wrapped pellets were found on the floor. Ambulance crew attended the scene and found the defendant not totally conscious.

The defendant was taken to the hospital and police later arrived and seized all the exhibits including 100 pellets of suspected dangerous drugs which later confirmed to be a total of 970 grammes of a solid containing 779 grammes of cocaine with an estimated retail value of around HK$1.1 million.

The defendant was arrested for trafficking in a dangerous drug. With the assistance of an interpreter, the defendant attended a video-recorded interview under caution. The defendant said, among other things, that he is a Jamaican businessman with university education. He was in need of money and he helped someone to smuggle the cocaine from Jamaica to South Africa for a reward of US$3,000. He swallowed 100 pellets of cocaine in Jamaica and travelled to Mexico. There he ejected all the pellets in the hotel. He swallowed them again and flew to Tokyo. He then flew to Hong Kong from Tokyo. He ejected all 100 pellets in the hotel in Hong Kong and he passed out after he had cleaned the pellets. He woke up in the hospital and his plan was to stay in Hong Kong for two days. Then he would fly to South Africa with the pellets.

Now background and mitigation. The defendant is 51 years old, Jamaican. His father passed away in August this year while his mother passed away two years ago. He is married, he has seven children, the youngest one being 7 years old. He is educated up to university level but dropped out due to financial difficulties. He was a chef before but after he was injured in his eye by hot steam from a pressure cooker, he became a businessman.

The defendant does not have any criminal record in Hong Kong. He claimed to have been locked up for six years in Jamaica for having killed someone in a traffic accident. After he was released from prison, he helped his father to run a store. Things were hard and he had to borrow money from a friend after hurricanes hit Jamaica in 2016 and 2017 and that friend pressured him into drug trafficking when the defendant was unable to repay the debt.

In mitigation, your counsel, the defendant’s counsel, Mr McNamara, referred to the sentencing guidelines of between 20 to 23 years and submitted the quantity here is at the lower end. As the defendant pleaded guilty at the earliest opportunity, he urged me to give the defendant the full one-third discount. There is, undoubtedly, an international element involved in this case and Mr McNamara submitted that he could not argue with a figure of 18 months as an addition.

Further, I was informed that the defendant had been actively assisting Father Wotherspoon in his campaign and Mr McNamara asked me to give the defendant a further discount of 3 months to reflect that.

Now, for the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In a Hong Kong case of HKSAR v Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of cocaine, and the cocaine involved here is 779 grammes, which falls into the category of 600 to 1,200 grammes with a starting point of 20 to 23 years. I am of the view that a starting point of 21 years is appropriate here.

The case involved cross-border trafficking so an enhancement is -- actually this case involved international element. So an enhancement is called for. After considering the case of HKSAR v Chung Ping Kun, the appropriate enhancement for 779 grammes of cocaine under this heading is one of 1 year and 6 months, so 18 months altogether. So the enhanced starting point is therefore 22 years and 6 months.

The defendant had pleaded guilty at the earliest opportunity and is entitled to full one-third discount. So with this discount, the sentence will be one of 15 years.

I now have to decide if I should give the defendant any further discount for his assistance given to Father Wotherspoon’s campaign.

Now Father Wotherspoon has written to me, informing me that the defendant has strongly supported his campaign to warn people in Central and South America about the danger of drug trafficking to Hong Kong. The defendant’s own handwritten letter describing his story and how he was recruited by someone called Kingsley Gogo was posted at a special website run by Father Wotherspoon. I have checked the website. That is why I know. And further, Father Wotherspoon said that using this information from the defendant, he managed to locate this drug dealer through Facebook and have since warned people about this particular drug lord.

For the purpose of sentencing, I am prepared to accept that the defendant did provide assistance to this worthy cause of Father Wotherspoon, though as usually as in a case of this nature, it is hard to assess any tangible effect or benefit of such assistance. I am therefore willing to treat the defendant as a person of positive good character and give him a further discount of 6 months.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 14 years and 6 months’ imprisonment.