HKSAR v. Onuama Enyinnaya Nkemdi

HCCC 432/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 432 OF 2015

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REASONS FOR SENTENCE

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1.On 6 November 2015, the defendant pleaded guilty to trafficking in a dangerous drug at Eastern Magistrates’ Court and he was committed to this court for sentence.

2.The facts agreed upon the defendant’s plea of guilty were as follows.  On 10 March 2015, the defendant, a 47-year-old Nigerian national arrived at Hong Kong international airport on a flight from Ethiopia.  He was intercepted upon his arrival and after a medical examination it was confirmed he had foreign objects in his body.  He was hospitalised and over the next few days he excreted 88 packets which contained a total quantity of 1.56 kg of a solid containing 718 g of cocaine.  He also had on him US$2,519.  Although initially under caution he did not say anything, he now admits and accepts that he possessed the drugs seized for the purpose of trafficking.

3.The estimated street value of the drugs seized is HK$1,664,520. 

4.Little is known about the defendant as this is the first time he has come to Hong Kong.  However, I am informed by Mr Jonathan Kwan, who appears on behalf of the defendant that he comes from Nigeria and is married with four children under the age of five years.  The children are from two previous marriages where both of the previous wives have passed away.  His children are currently being cared for by his current wife and they live with his elderly mother.  He was educated to college level and attained a degree in business administration.  He set up his own company and operated a business as a merchant in mobile phones and laptops earning a monthly income of about US$400.

5.I am informed by Mr Kwan that his business took a serious downturn which led to his company going into bankruptcy.  It was then that he was approached by a friend and tempted to smuggle drugs into Hong Kong on the promise of a reward of US$3,000.  It is submitted that he did this in order to provide for his family. 

6.Personal motivating factors or circumstances explaining why the defendant has engaged in smuggling drugs provides little or no mitigation when assessing the penalty to be imposed upon conviction for trafficking in dangerous drugs.  It is simply not an excuse to say that the reason for smuggling the drugs was for financial need or to provide for one’s family as the consequences of this crime have serious and deleterious effects on the individuals to whom the drugs are supplied and to the community that has to bear the care and responsibility for the devastation that drugs cause in a number of ways. 

7.The defendant has submitted to me a letter written in English.  It is well written and goes into considerable detail about the defendant’s background and circumstances, how he got involved in this crime and his deep regret and remorse for having committed this offence.  I accept what he says in his letter and that he is as claimed a person who has lived a hitherto decent life in order to provide for his family.  I will bear this in mind but as I have explained this provides little or no excuse or indeed compassion for what he has done. 

8.According to the sentencing guidelines for the quantity of narcotic content involved of 718 g of cocaine, he is in the band of 600 to 1,200 g where guideline starting points for traffickers after trial, subject to any enhancement, is 20 to 23 years’ imprisonment.  I will adopt the starting point of 20 years and 3 months’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197; HKSAR v da Silva [2010] 5 HKLRD 576 and HKSAR v Chung Ping Kun [2014] 5 HKLRD L2.  The sentencing guidelines also require an enhancement for the international element of bringing the drugs into Hong Kong and the starting point will be increased by 1 year to 21 years and 3 months’ imprisonment.  The defendant is entitled to a one-third discount for his early plea of guilty and accordingly he is sentenced to imprisonment for 14 years and 2 months.

Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for HKSAR

Mr Jonathan Kwan, instructed by K.C. Tsang & Co, assigned by Director of Legal Aid, for the defendant