HKSAR v. Ullah Thabitha Sibongile

HCCC 307/2019

[2020] HKCFI 1766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 307 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Ullah Thabitha Sibongile, 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. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Admitted Facts

The facts disclosed that on 23 December 2018, the defendant arrived at the Hong Kong International Airport from Johannesburg. The defendant had a suitcase and a handbag with her at the time. Customs Officer found an object wrapped with black adhesive tape inside her handbag. When asked, the defendant said she did not know what the object was, that a woman had given it to her in the toilet of Hong Kong International Airport as a Christmas gift for her kids.

Upon further search, Customs Officer found cocaine powder concealed in the heels of the sandals the defendant was wearing. She again said she did not know what the powders were. The defendant later admitted that the objects inside her handbag and the heels of her sandals were cocaine during a preliminary interview under caution. She said she acquired the cocaine in South Africa and she planned to bring the cocaine to the hotel, repack them into small packets and sell them on the street randomly.

The defendant attended two video-recorded interviews under caution. She said, among other things, that she and her husband lived in Johannesburg with their family and she had no money problem. The whole trip was arranged by Mr Wong who had, with other persons, threatened to kill her family as her eldest son owed them money. Her offer to pay off the debt for her son was refused. Though her son denied owing money to those people, the defendant somehow believed her son did owe money and agreed to work for Mr Wong. Mr Wong and other gave her the drug and the pair of sandals after she bought the tickets to Hong Kong with money provided by Mr Wong. The drugs were wrapped on her person.

Upon arrival in Hong Kong, she went to the toilet and threw the drug inside a bin. She then changed her mind as she was told two unknown men had travelled with her on the plane and were keeping an eye on her. She thought she might be killed if she lost the drug. She then retrieved the drug from the bin and put it in her handbag. If she had not been intercepted by Customs, she would have waited at the airport for Mr Wong’s phone call.

Upon examination, the object inside the defendant’s handbag was confirmed to be a plastic bag containing 1.29 kilogramme of a powder containing 888 grammes of cocaine while the objects inside the heels of the sandals were two plastic bags containing 702 grammes of a powder containing 465 grammes of cocaine.

The estimated retail value of all the cocaine found in this case, that is 1,353 grammes, was around HK$2 million.

Background and mitigation

According to the antecedent statement dated 23 April 2019, the defendant was 43 years of age, holder of a South African passport. She had no previous conviction in Hong Kong. She had married and had twin daughters, aged 18, and a young son, aged 2, with her husband. She also had an older son aged 26 with her first husband. The defendant claimed to have attained secondary-level education and worked as a tailor.

Mr Pannu, counsel for the defendant, confirmed the contents of the antecedent statement. As to the reason for committing the offence, Mr Pannu submitted that the defendant was 19 when she had her first son. Her son did not have a conventional upbringing and had fallen astray, getting into drugs and associated with bad elements after leaving home. The defendant was approached by four men in August 2018 at her home who came to collect the debt allegedly owed by her son. She was continuously harassed so she eventually agreed to act as a mule to courier drug in order to repay her son’s debt. She was also fearful that the mobsters might harm her family as well as her eldest son. Mr Wong had arranged for her to have the sandals and the drug strapped to her body. She was warned two persons would be on the flight to keep a close eye on her.

Upon arrival in Hong Kong, she discarded the dangerous drug in a bin inside the toilet but changed her mind and retrieved it as she was fearful for the safety of her family and her son. She then put the drug inside her handbag.

Mr Pannu referred to the guidelines in the case of Lau Tak Ming and Abdallah, submitting the starting point for 1,353 grammes of cocaine would be around 23 years and 2 months.

As far as the enhancement for the international element is concerned, Mr Pannu submitted an enhancement should not be more than 2 years. Mr Pannu also referred to the deep remorse of the defendant, emphasizing the defendant was doing what a mother would do for her son, resulting in her commission of this serious crime. Mr Pannu asked me to give consideration of the defendant’s assistance to Father Wotherspoon’s campaign. Both the defendant and her son have written to this Court, asking for mercy.

Consideration and reasons for the sentence

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 the case of HKSAR v Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of cocaine. The cocaine involved here is 1,353 grammes which falls into the category of 1,200 to 4,000 grammes with a starting point of 23 to 26 years.

This case involved the importation of drugs from overseas. An enhancement is called for. As the amount involved is over 1 kg, 1 kilogramme, the enhancement would not be less than 2 years in addition. That is the case of Abdallah.

While the defendant cannot be said to have acted under duress, I accept the defendant felt that she had no choice but to commit this serious crime and I am prepared to adopt a starting point at the lowest end of the applicable band, that is 23 years, and with enhancement of 2 years, the starting point is one of 25 years. The enhancement is for the international element.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. With the discount, the sentence is 16 years and 8 months’ imprisonment.

I have a letter from Father John Wotherspoon confirming the defendant’s participation in his programme. I will give the defendant a discount of 3 months for her participation in Father Wotherspoon’s campaign. There are a few authorities, including HKSAR v Rwakibale Aheebwa Peter, Kilima Abubakar Abbas, saying that no more than 3 months to be given for a defendant’s participation in Father Wotherspoon’s campaign.

I appreciate the defendant’s deep remorse and the reason why she had committed the present offence but I see no other grounds to further reduce the sentence.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 16 years and 5 months’ imprisonment.