HKSAR v. Maponya Mothibi Jonas

HCCC 367/2019

[2020] HKCFI 2691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 367 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 pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug 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 concerned, personal background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The defendant arrived from Johannesburg by flight and was to go to Macau. He was stopped by customs officers at the transit lounge of the international airport, waiting for vessel transfer. Upon search, nothing illegal was found on him and his belongings. Later, the defendant indicated that he needed to go to the toilet. There he discharged 17 pellets of substance. He was arrested.

Under caution, he said a friend called Zuma had given him those pellets but he did not know what they were. He also said he would receive US$1,500 as remuneration.

When he was later taken to a hospital for medical examination, he discharged eight more pellets of substance. As medical examination on the defendant showed foreign objects in his body, he was sent to a hospital where he discharged 46 more pellets of substance.

The 71 pellets of substance discharged by the defendant was later confirmed to be 916 grammes of a solid containing 741 grammes of cocaine.

In an interview, the defendant said under caution that he was given some 65 to 75 pellets in Johannesburg to swallow and he did not know what was contained inside the pellets. He was to take a ferry to Macau, stay in a hotel, and then someone would come to find him and he was to follow that person’s instruction. He did not know who would come to find him. He had already received US$1,500 for the hotel cost in Macau.

I was told that the defendant is a holder of the South African passport. He was born there and is now 47 years of age. He is married with five children aged from 1 to 24. He attained college education and had worked as a graphic finisher in printing industry. He has a clear record in Hong Kong.

In mitigation, learned counsel for the defence, Mr Grounds, stressed that the defendant pleaded guilty at the earliest opportunity and informed the court that the defendant is remorseful. He also asked the court to take into account that the defendant has no family ties in Hong Kong and would be deprived of family contact for years.

A letter of the defendant in which he expressed his remorse was produced. I was also told that the defendant had participated in the programme of Father John who has been launching a campaign against drug mules.

The narcotic content of the dangerous drug which the defendant trafficked in was 741 grammes of cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in the case of trafficking in cocaine, the guidelines in R 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 is 600 to 1,200 grammes. I see no reason to justify any departure from the sentencing tariff. In my judgment, the role of the defendant was that of a courier.

There was international element in this case for which, having regard to HKSAR v Abdallah and HKSAR v Chung Ping Kun [2004] 6 HKC 106, I will enhance the starting point by about 16 months for this reason.

Having considered the whole circumstances, in my judgment, only an ultimate starting point of 22 years is sufficient to reflect the seriousness of the present case.

The defendant is entitled to a one-third discount for his guilty plea before a magistrate, his previous clear record and his remorse which I accept.

Having considered the whole circumstances, including the defendant’s participation in Father John’s campaign and everything learned counsel said on his behalf, on top of the one-third discount, I will give the defendant a total further discount of 11 months.

So, defendant, please stand up. For the reasons I have mentioned, I sentence you to an immediate imprisonment term of 13 years and 9 months.