HKSAR v. Nqishe Nopinki

HCCC 110/2020

[2020] HKCFI 2988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely, 1,275 grammes of a solid containing 929 grammes of cocaine.

Now, the facts which have been admitted show that the defendant arrived in Hong Kong on 9 June 2019. And upon an investigation of her suitcase, the drugs were found in a false compartment inside the suitcase. Initially, the defendant said that she came to Hong Kong to visit her boyfriend and that she had bought the suitcase in a shop prior to coming to Hong Kong. The airline records show that the defendant came from Johannesburg and has a return flight ticket booked to leave Hong Kong on 17 June 2019.

The defendant had also been interviewed in relation to the messages which was inside her mobile telephone. However, at the time, she still denied knowledge of the cocaine found in her suitcase. Customs officers inspected the defendant’s mobile telephone with a search warrant, and the number which the defendant gave as the number of her boyfriend was not in the mobile phone’s phonebook, and the number she gave to the customs officer as the telephone number of her boyfriend contained messages from a person of this number who had typed “Hello”, “This is Patrick from Hong Kong”. So when the defendant was asked about Patrick, she said subsequently that Patrick was another name for Alex. In any event, the customs officers also found out that the defendant had been to Hong Kong in December 2018.

Now, the drugs which had been found has a retail value estimated to be around HK$1.65 million. So it is a very substantial amount of drug.

As Mr Pannu very clearly pointed out in his excellent submissions in mitigation, the Court of Appeal has already laid down sentencing guidelines. And for quantity over 600 grammes, the guideline has been laid down in the case of Abdallah and where it says that for trafficking in between 600 to 1,200 grammes, it would merit a starting-point sentence after trial of 20 to 23 years.

The defendant is 32 years old and I am told she has a clear record. And Mr Pannu has mitigated on her behalf that the defendant is very remorseful and that she might have been groomed by this person, Alex, to commit this present offence since the time she came to Hong Kong in December 2018. And Alex used her vulnerability in order to use her as a drug mule in the trade.

Mr Pannu also submitted that the defendant is very remorseful and that the defendant is having a hard time adjusting to life in prison, particularly due to being in a foreign country. That is inevitable and this is part of the deterrence because Hong Kong is very vulnerable to visitors from overseas who carry drugs into Hong Kong.

The defendant’s story is not new. We have had many, many drug couriers bringing drugs into Hong Kong because their boyfriend or girlfriend enticed them to do so, or friends may groom them to do so. This is part of why we hand out very heavy sentences in order to deter people from allowing themselves to be used as drug mules, no matter how attractive the person who tempts them may be.

The Court of Appeal has said, and it still holds true, that the foreignness of a defendant does not carry any mitigating weight when assessing the sentence the court should give. However, I do accept Mr Pannu’s submission that it is one of the factors that a court may consider. Of course, a sentencing court’s hands are never tied and it is always up to a sentencing judge’s discretion in each case.

As I have said, the sentence starting point for this amount of cocaine would merit a sentence of between 20 to 23 years as set down in the guidelines laid down in Abdallah. For this amount of drug, I would consider a starting point of 21½ years. Mr Pannu has very helpfully worked out that it would be around 21 years and 7 months but I will adopt the 21½ years.

Now, and then there is the enhancement for the international element. And as has been stated in the case of HKSAR v Chung Ping Kun in 2014, the enhancement would be in the region of 1 to 2 years for drugs involving 500 to 1,000 grammes. So as far as the defendant is concerned, the enhancement would be closer to 2 years. So, and Mr Pannu very helpfully worked out mathematically that it would be about 1 year and 10 months.

Of course, I take into account the case, the facts of the case, the background of the defendant, and I will enhance the sentence only by 1½ years, and this is where the flexibility that Mr Pannu has noted, has submitted comes in for rather than give the enhancement of 1 year and 10 months which Mr Pannu has worked out mathematically, this enhancement will take into account the background of the defendant and also the fact that she is in a foreign country. So that will give us a total of 21½ plus 1½ years. And then, the defendant is entitled to one-third discount.

So, therefore, after the discount, the defendant will serve a sentence of 15 years and 4 months.