HKSAR v. Kalembe Sarah

DCCC 235/2024

[2024] HKDC 1495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 235 OF 2024

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REASONS FOR SENTENCE

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Charge

1.The Defendant pleads guilty to trafficking in dangerous drugs. 

Facts

2.At around 5:22 pm on 6 October 2023, at Square Street near the junction of Ladder Street in Central, the police intercepted and searched the Defendant, who was acting furtively.  She had a metal box (“Metal Box”)  and a recycle bag (“Recycle Bag”)  on cash of HKD$7,000 on her.

3.The Metal Box was eventually unlocked to reveal 38 plastic bags containing a total of 25.76 grammes of a solid containing 5.97 grammes of cocaine.

4.The Recycle Bag contained a chewing gum bag, which contained (a)  20 plastic bags containing a total of 13.42 grammes of a solid containing a total of 3.5 grammes of cocaine and (b)  2 plastic bags containing a total of 1.33 grammes of a solid containing 1.04 grammes of 3,4-methylenedioxymethamphetamine.

5.In total, she was found in possession of 60 plastic bags.  They contained dangerous drugs, namely a total of 39.18 grammes of a solid containing 9.47 grammes of cocaine and 1.33 grammes of a solid containing 1.04 grammes of 3,4-methylenedioxymethamphetamine (“Ecstasy”).

6.In the two video recorded interviews conducted on 7 October 2023, she stated that someone she did not know well had asked her to deliver the chewing gum bag to Caine Road for no reward. 

7.At the material time, she was a Form 8 recognizance holder in Hong Kong.

Mitigation

8.The Defendant is a Form 8 recognizance holder, who arrived in Hong Kong from Uganda in 2013.  She has no drug-related records.  

9.Her being a Form 8 recognizance holder is an aggravating factor in her sentence.  The suggested enhancement is 3 months upon comparing the starting point in our present case with that of HKSAR v Islam S. M. Majharul [2020] HKCA 300.  I agree to this.  

10.Father John Wotherspoon has written a letter to the court dated 22^nd August 2024.  It states that the Defendant had participated in his online campaign to post her letter, being translated into English, narrating her real life story leading to her present detention in Hong Kong so as to warn potential drug traffickers in other countries of the dire penal consequence of drug trafficking into and inside Hong Kong.  The defence asks for a discount of 3 months in that regard. 

11.I am aware of the Court of Appeal’s observations in HKSAR v Cherop Caroline [2021] HKCA 1132 as follows:

“42. In Herry Jane Yusuph , which was the comprehensive attempt of senior judges of both the Chinese and English divisions of this Court to unify the approach to sentencing in drug trafficking cases, we concluded our judgment, in respect of appeals concerning discount for assistance to Father Wotherspoon’s campaign, with this statement:

“Given the wide and absolute discretion afforded to sentencing judges on this matter, which can only attract a “token discount” at most, we hope not to see this sort of ground of appeal being put before us again”.

As any perusal of reported and unreported judgments of this Court over the last few years will amply demonstrate, there have been a great many appeals against sentence involving international couriers complaining in one way or another about the discount that was or was not given for their assistance in Father Wotherspoon’s campaign. It is time that this issue was brought under control, mindful that numerous different judges of this Court, including the Court in Kilima Abubakar Abbas , have already repeatedly said that these are matters, because of their ongoing nature, which are best left to the Executive. Unfortunately, the Court’s judgment in Herry Jane Yusuph was not delivered until some two weeks after leave had been granted in this case. Nevertheless, we repeat that we hope this will be the last time that we entertain appeals on the question of discount for assistance in Father Wotherspoon’s campaign.

43. That is not to say that a token discount cannot still be given for assistance to Father Wotherspoon’s campaign as was envisaged by the Court in Kilima Abubakar Abbas. However, we wish to emphasise that judges should not rely on hearsay, anecdote and mere assertions of usefulness but must look at the letter(s)  (properly adduced)  that have been written by a defendant or applicant pursuant to this campaign, and consider the substance of what is said, as well as when and how the letters have been written, if they are properly to act on them in the exercise of their discretion. Otherwise, the complaints of inconsistency of approach at first instance will continue to bedevil the appellate courts.

44. We also wish to stress that a discount of up to three months is neither automatic, nor is it an entitlement: indeed, three months represents the limit of what might be given for this factor and is to be regarded as exceptional. Judges are perfectly entitled in the exercise of their discretion to give no discount for this factor at all; just as this Court said it would not have given any such discount in Herry Jane Yusuph. Where the assistance is rendered to Father Wotherspoon’s campaign after sentence has been passed, then it is a matter more properly to be addressed by the Executive.”

12.There is no indication of how her letter in support of the campaign has yielded any positive effects on a par with voluntary or charitable services to the community, local or international.  I do not find it a mitigating factor here. 

13.Cocaine is more serious than ecstasy by its harmful effect as reflected in cocaine’s higher sentence for the same quantity.  The starting point for trafficking in ecstasy of up to 1 g is below 2 years at the Court’s discretion (SJ v Hii Siew Cheng [2000] 1 HKLRD 1).  The starting point for trafficking in cocaine of up to 10 g is 2-5 years (Queen v Lau Tak Ming [1990] 2 HKLR 370; AG v Rojas [1994] 1 HKC 342). 

14.The defence makes calculations based on the different tests in its further submissions dated 4 September 2024.  The prosecution in its letter dated 5 September 2024 makes calculations slightly differently. 

15.The defence suggests a starting point for cocaine, 9.47 g, is 56.82 months.  The prosecution suggests 58 months. 

16.If the entire weight is to be cocaine, ie, (9.47 g + 1.04 g)  10.51  g, the defence’s calculation is a starting point of 63.06 months.  The prosecution suggests 60.05 months. 

17.For the ratio test, the defence has no calculations.  The prosecution’s calculation is a starting point of 59 months. 

18.For the conversion test, the defence has no calculations.  The prosecution’s calculation is a starting point of 58.2 months. 

19.The defence suggests an enhancement for the presence of cocaine and ecstasy together is 1 month. 

Sentencing the Defendant

20.Considering the range of starting points, I take 59 months and add 1 month for the presence of cocaine and ecstasy together.  I further add 3 months for her status as a Form 8 recognizance holder.  From the eventual starting point of 63 months, I give her a one-third discount for timely plea of guilty. The sentence is 42 months.  She has no other mitigating factors.