Maria Cornelia Duvenhage


Before: Deputy District Judge Tallentire

Date: 15 July 2009 at 10.55 am

Present: Mr Michael Arthur, Counsel on fiat, for HKSAR
Mr Frederic Whitehouse, instructed by Rita Law & Co., for the Defendant

Offence: Trafficking in a dangerous drug (販運危險藥物)


Reasons for Sentence


1. Defendant, you are convicted after trial of a single offence of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2. The facts themselves have been dealt with at length in my verdict. Suffice it to say that you were caught bringing into Hong Kong20.17 kilograms of herbal cannabis. That was from South Africa.

3. You are of hitherto clear record. I do note that this is a retrial and I have considered the probation officer’s background reportand the medical report that was submitted to the learned judge at the last trial.

4. Mr Whitehouse on your behalf has entered mitigation. He tells me you are 59 years of age with hitherto clear record and not a habitualtraveller. That supports the fact that this misadventure was a one-off. It tells me you have suffered in prison and points to yourmedical problems and weight loss which is supported both by the probation officer and your appearance from the interviews.

5. Fortunately, your health problems do seem now to have settled down. He asks me to take into account your age, your health and thefact that you were a foreigner in assessing the starting point. Also, the offence is not exacerbated by any aggravating features. He seeks a reduction also as this is a retrial. Additionally, he asks me to take into account the fact that this is not cannabisresin; this is herbal cannabis, and therefore a lesser starting point should be taken.

6. Very properly, he quotes the case of Secretary for Justice v Lee Siu Kei. In that case, the defendant pleaded guilty to trafficking in just over 13 kilograms of herbal cannabis, and the court took a startingpoint of 5 years which was reduced to 4 and a half years on the basis of it being of a herbal nature.

7. With respect to Mr Whitehouse, there is one aggravating feature and that is the fact that the trafficking involved you bringing thecannabis into Hong Kong. That, in my opinion, is an aggravating feature. I do agree that the starting point should be reduced becauseof the herbal nature of the cannabis, and I will refer to that later.

8. I must confess that I have considered the application put forward and I take the view that your mere good character, your health,age and foreignness and the fact this is a retrial do not entitle you to any further discount. I have taken into account the factsof the case, I have taken into account your clear record, I have taken into account the mitigation advanced and the charge itself,and I would take as a starting point of 5 years 9 months if this were to be cannabis resin.

9. This being herbal cannabis, I am giving a discount of 9 months, and therefore you will go to prison for 5 years.

Deputy District Judge

Appeal by the defendant to Court of Appeal against conviction and sentence allowed. Please refer to CACC11/2009 dated 29 April 2009