HKSAR v. Baso Ntombekhaya Ethel

Read the full judgment text of HCCC 348/2019 on BabelCite. This High Court CFI judgment was delivered on 16 November 2021.

Cites 1 case

Case No.HCCC 348/2019[2021] HKCFI 3733
Court
High Court CFI
Date16 Nov 2021
Judge
Case Document
100%Judiciary

HCCC 348/2019

[2021] HKCFI 3733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 348 OF 2019

________________________

  HKSAR  
  v  
  Baso Ntombekhaya Ethel  

________________________

Before:  Hon Campbell-Moffat J
Date:  16 November 2021 at 10.20 am
Present:  Ms Sheroy Tam, SPP of the Department of Justice, for HKSAR
  Mr Jeevan Hingorani, instructed by H Y Leung & Co LLP, assigned by DLA, for the accused
Offence:   Trafficking in a dangerous drug (販運危險藥物)

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

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COURT: You have pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in that you imported into Hong Kong 842 grammes of cocaine from South Africa on 25 December 2018. Almost three years ago. The Summary of Facts, as amended, have now been read out and you confirmed that offence on the basis of your plea.

When you were first apprehended, you said that you purchased these drugs in South Africa for US$55,000, which is the equivalent, in Rand, of ZAR9,593,377. And that, as you and I know and anybody else, is a phenomenal amount of money in South Africa.

You also said, at that time, that you came to Hong Kong with no contacts and no previous experience in the Far East to sell drugs to whoever you could find to buy them; which was obviously also highly unlikely. The excuse you gave for not wishing to take part in the controlled delivery was also untrue. But I have been told now, and it is accepted, about your motivation; why you did that and why you did not tell the truth at that time. But as a consequence of that, I have just the simple facts available to me, which is that you came to Hong Kong with 842 grammes of cocaine, secreted in your underwear, knowing full well and deliberately, that you were carrying out a criminal offence.

Since your arrest and with appropriate advice no doubt, you have given the police an alternate version of events, which is far more likely to be the true version of events. I have available to me other matters which have been raised on your behalf and which have been the subject of considerable discussion over a number of months. I accept the basis of the plea that has been provided to the court today and I will not penalise you for your original untruths.

Mr Hingorani has confirmed your personal circumstances. You are now 43 years of age and a mother of four children between 19 to 7 years, I believe. You said originally you were educated up to Form 12 standard and you were an engineer, earning ZAR4,500 a month. But since then, I now understand that you were unable to obtain your qualification in engineering and you worked as a bar tender, earning the same amount of money. In any event, you were the sole breadwinner of your family and you were under considerable financial pressure, such that you put your family, not only yourself but your family, at risk by agreeing to bring dangerous drugs into Hong Kong for what must have been an international drug-trafficking syndicate.

The street value of the dangerous drugs you brought into Hong Kong was in fact $1,345,500, or in your money, ZAR3,164,183. Either way, it is a large amount of money.

The guideline case, as no doubt Mr Hingorani has explained to you, for trafficking in between 600 and 1,200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437. That case shows a range of sentence between 20 and 23 years. For 842 grammes of cocaine, the starting point after trial is 21 years and 3 months. There is the aggravating factor that you imported these drugs from South Africa and therefore in accordance with that same case Abdallah, I am required to enhance that sentence by a further 1 year and 6 months, making a total of 22 years and 9 months.

You assisted Father John Wotherspoon in his campaign in more ways than one and in more than one jurisdiction, so I am able to discount that sentence by 3 months and I cannot go over that figure. That makes a total of 22 years and 6 months.

Taking into account the other matters I have been told, I am going to treat you as if you pleaded guilty at the first opportunity and you are entitled to at least a one-third discount for that plea. But even if I were wrong to do that, you also sought to assist as best you could in very limited circumstances. You were prepared to put yourself at risk in order to attend an identity parade and to give evidence in trial if need be. Even though a decision was taken by the Department of Justice not to prosecute, you, nevertheless, deserve some credit for your willingness to assist as best you were able. No doubt you would have come up to proof, albeit it might have had limited immediate value in the circumstances of this case. It would certainly add to the intelligence of the prosecuting authorities in any event.

I will therefore enhance the appropriate discount for plea and you will go to prison for 13 years and 6 months.