HKSAR v. Paul Moses John

HCCC 268/2020

[2021] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 268 OF 2020

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

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COURT: Moses John Paul (hereafter “the accused”) pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance. The particulars of the offence are that on 20 August 2019, at the Hong Kong International Airport, trafficked in 870 grammes of a solid containing 604 grammes of cocaine.

The accused arrived in Hong Kong at the Hong Kong International Airport, having travelled to Hong Kong from Uganda via Ethiopia. In the transit area of the airport, the accused was intercepted by officers of the Customs and Excise Service. The accused was searched but nothing was found. The officers suspected that the accused had swallowed containers of dangerous drugs. He was taken to a hospital where, on examination, he was found to have foreign objects inside his body. In answer to a caution, the accused admitted that he had swallowed something of the order of 40 foreign objects near the airport. Later that day, he discharged the pellets inside his body, which revealed the cocaine particularised in the charge. The accused admitted that he had been given the pellets and that he was intending to take them to Macau for a reward of US$1,500.

Later in a video-recorded interview, the accused told the Customs and Excise officers that he had been offered a reward to take the pellets to Macau and that he had swallowed the pellets in Ethiopia. He also admitted arranging for his accommodation and being given a contact number to call when he was in Macau to effect delivery of the cocaine.

At the time of his arrest, the street value of the cocaine, had it been sold on a retail basis in Hong Kong, was something of the order of $914,000.

Following the arrest of the accused and his excretion of the pellets containing the cocaine which the accused had swallowed, he was taken before a magistrate. In due course, on 2 November, in the course of committal proceedings before that magistrate, the accused pleaded guilty and was committed to this court. He has confirmed his plea and the admission of the facts in this court today.

Antecedents and mitigation

The accused is a holder of a Tanzanian passport. He is 49 years of age. He told the Customs and Excise Service officers that he was a married man and had a teenage daughter and a young son. The accused told the authorities that he earned a living in Tanzania selling clothes and beauty products.

He is a person of no previous convictions in Hong Kong.

I am told by counsel for the accused, Mr Phil Chau, that he is a man of modest education and he was motivated to commit this crime so as to pay for the education of his children. I accept those assertions. I also accept that since being remanded in custody, he has assisted the programme operated by Father John Wotherspoon in a number of respects including providing assistance to, amongst other things, the website run by Father John devoted to dissuading persons from becoming, to use the colloquial, drug mules into Hong Kong. He has provided other assistance which I need not detail in these reasons.

Sentencing Principles

Sentencing for Trafficking in Cocaine

For many years, the community of Hong Kong has taken a severe view of trafficking - particularly in relation to drugs such as cocaine, and it is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself from that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences - sometimes serious ones - for the families of those persons who become addicted to cocaine.

The view of the community is revealed in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs, the subject of this charge.

The source of guidelines in relation to trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. Further, in Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. In that case, the Court of Appeal considered guidelines for cases such as the present one where a quantity greater than 600 grammes was found in the possession of the accused.

The applicable sentencing guidelines for a sentence for quantities between 600 grammes to 1,200 grammes of cocaine would attract a sentence, if the accused had been convicted after trial, of between 20 and 23 years.

Enforcement for Cross-border Trafficking

The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlies this is deterrence. The authorities which articulate this policy include HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, HKSAR v Abdallah (above) and HKSAR v Chung Ping Kun [2014] 6 HKC 106. In Chung Ping Kun, in paragraph 9 of that decision, after an extensive review of the authorities, the Court of Appeal suggested that an appropriate enhancement where the drugs involved were between 500 grammes and 1,000 grammes would be between 1 year and 2 years.

Discount for Plea of Guilty

The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment, then a discount from the appropriate starting point of 33 per cent would be applicable.

Application of Sentencing Guidelines

In the present case, the cocaine involved is just a few grammes over 600 grammes, and accordingly, had the accused been convicted after trial, the starting point for his sentence would have been 20 years. In my judgment, the appropriate enhancement for bringing the drugs across Hong Kong’s borders would be 1 year. That makes a starting point of 21 years.

The accused is entitled to a discount of one-third of his sentence for pleading guilty at the earliest opportunity. I should add that I propose to further discount the starting point by 3 months to recognise his assistance to Father John and his programme so far.

I should add this. The 3 months’ discount is, in a sense, a down payment. Anything that discourages the drugs coming into Hong Kong is worthy of recognition, and if the accused continues on that path, he would be well advised to make sure that the correctional services authorities know about this and know about it clearly because that might well be relevant to further discounts that the authorities are empowered to impose at a later stage. That is a matter for the accused. His fate is, in that sense, in his hands. Clearly, anybody who traffics in dangerous drugs and then takes steps to plead guilty and assists the authorities in the way that has been done in this case is worthy of at least a modest discount to recognise a change of position.

This is yet another case where a person of apparently previous good character was lured by the promise of a substantial amount of money to carry drugs from Africa to Hong Kong. He leaves behind in Tanzania a family including two children who are probably of an age where they need their father the most. I can readily appreciate the temptation placed upon the accused and his motivation for succumbing to the temptation. The sad truth of the matter is that even if he got to Macau and delivered the cocaine to his confederates, it is likely he would not have received anything like the reward he was promised. That he was a dupe is probably not open to question. However, Hong Kong has a long-settled policy of deterrent sentencing.

Would the accused please stand up? The arithmetic in sentencing in cases like this may, on a superficial analysis, appear to be cruel and heartless. However, such as the dangers of drugs such as cocaine, that deterrence is plainly necessary. Indeed, had one of the pellets burst while it was inside the body of the accused, this case may have ended up in the Coroner’s Court rather than in the High Court. The least sentence that the court can pass on the accused is 13 years and 10 months’ imprisonment, and that is the order of the court.