HKSAR v. Okpo Stanley Igwebuike

HCCC 90/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 90 OF 2016

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REASONS FOR SENTENCE

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1.The defendant is a 33-year-old Nigerian male who on 20 August 2015 was caught bringing a large quantity of cocaine into Hong Kong. He was charged with the offence of trafficking in a dangerous drug to which he pleaded guilty at the earliest opportunity of the proceedings and committed to this Court for sentence.

2.He came to Hong Kong on a flight inbound from Dubai, although his journey had originated in Lagos, Nigeria.  He was stopped on arrival by Customs officers but a search of his luggage and person proved negative.  He was sent to hospital for an internal examination which revealed that he had foreign objects in his body cavity.  Later he discharged a total of 50 pellets containing a total of 795 g of a solid containing 325 g of cocaine. The street value of the drugs was $813,285.

3.Upon being arrested and cautioned, the defendant said that the objects in his body were 50 pellets containing cocaine which he had swallowed and that they had been given to him by a friend in Nigeria for a reward of US$6,000.  In a later interview, he further explained that he had been given the 50 pellets by a person named “Emeka” in Lagos and that he would be paid a reward of US$6,000 for transporting the drugs to Hong Kong which he was required to do by swallowing them.  Emeka told him that on arrival in Hong Kong someone would contact him.  At the time of his arrest, he had in his possession a total of US$5,000 cash.

4.The defendant admits and accepts that he was trafficking in the drugs found in his possession.

5.The defendant is single and lives alone in Lagos, Nigeria.  He has eleven siblings and his father is deceased and his mother is a housewife.  He attained primary six education and before this offence he claims that he was running a business in used electronic parts in Nigeria, earning on a monthly basis about 30,000 Nigerian Naira which is the equivalent of US$150. 

6.Mr Richard Donald, for the defendant, in mitigation submits that the defendant conducted a relatively successful business in Nigeria in trading in second-hand electronic goods.  In consequence, from 2008 he made numerous trips to Hong Kong to purchase second-hand electronic good for sale in his shop.  He submits that he made 19 trips in all with each trip netting a profit of approximately US$1,500 to 2,000.  He further submits that after one trip to Hong Kong the defendant returned to Lagos and found that his shop had been burgled and everything in it had been stolen.  This left the defendant in financial ruin and without funds. I am told that the defendant wished to return to Hong Kong to buy goods in an attempt to revive his business and approached a friend to borrow US$10,000. The friend told him that he would give him US$6,000 and support him financially until he was back on his feet.  In return, he wanted the defendant to “deliver a parcel” to Hong Kong.  The arrangement was that he would get the US$6,000 upon his successful delivery of the parcel to Hong Kong.  It is claimed that the defendant then borrowed US$5,000 from his friend for the purpose of this trip.  He agrees that in accordance with the arrangement that he made with his friend, he swallowed the drugs in question before coming to Hong Kong.  He claims that upon arrival in Hong Kong he would contact someone who would then collect the drugs and give him the US$6,000. 

7.I should point out that the defendant’s account of the payment of the reward of US$6,000 has been given in anticipation that the defendant will present evidence on this issue in contesting an application by the prosecution for forfeiture of the US$5,000 cash that was seized from him at the time of his arrest. 

8.I also note that the defendant has no prior criminal record in Hong Kong which is basically meaningless to someone who has come here for the first time.  However, in the case of the defendant, he has come to Hong Kong on 19 previous occasions from 2008 to 2013 for short trips. The last occasion was in relation to this offence on 20 August 2015. 

9.The submission on behalf of the defendant provides no meaningful mitigation on his behalf.  It is clearly apparent that he was fully aware of what he was doing and the risk that he was undertaking by bringing the drugs into Hong Kong.

10.In HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, McWalters J (now McWalters JA), giving the judgment of the Court of Appeal, explained that it is a notorious fact that persons from an impoverished background in underdeveloped countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another and regrettably the persons most readily tempted by this kind of crime are persons who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking.  He emphasised that it is for this very reason that the courts will not be swayed by the plight of the trafficker. 

11.The sentencing guideline cases for drug trafficking have stressed that the gravity of the crime is such that it may result in otherwise mitigating factors having little, if any, weight.  It was explained by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at §32, that because of the grievousness of the offence, “a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally”, meaningful mitigation, apart from a plea of guilty, is rarely available.  The Court of Appeal went on to emphasize:

“The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

12.According to the sentencing guidelines for the quantity of narcotic content involved of 325 g of cocaine, the defendant is in the band of 200 to 400 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 12 to 15 years’ imprisonment.  According to the narcotic content of cocaine in this case, I will adopt a starting point of 13 years and 10 months’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197; 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 8 months to 14 years and 6 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 9 years and 8 months.

Mr P.J. Power, SADPP of Department of Justice, for HKSAR

Mr Richard David Donald instructed by Francis Kong & Co, assigned by Director of Legal Aid, for the defendant