HKSAR v. Oketa Sunday Basil

HCCC 144/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 144 OF 2016

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REASONS FOR SENTENCE

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1.On 18 March 2016, the defendant pleaded guilty to trafficking in a dangerous drug at Eastern Magistracy. He was committed for sentence to the Court of First Instance.

2.The facts agreed in support of his plea of guilty were that in the afternoon of 1 November 2015 the defendant, a 38-year-old Nigerian national, arrived in Hong Kong on a flight inbound from Doha. He was intercepted by Customs officers who searched his belongings but found nothing suspicious amongst them.  They found that he had in his possession US$2,000 and two mobile phones. 

3.Suspecting that he may be concealing dangerous drugs within his body, Customs officers sent him to hospital for a medical examination which confirmed the presence of foreign objects in his body cavity.  He was arrested and cautioned but said nothing at the time.  Later in the evening, he discharged a pellet which he acknowledged, upon being cautioned, contained a drug but said he did not know what type.  All in all, he discharged 59 pellets containing what was later confirmed to be a total of 784 g of a solid containing 326 g of cocaine. 

4.The estimated street value of the drugs at the time of seizure was HK$842,800.

5.In a subsequent cautioned interview he claimed that the purpose of his trip to Hong Kong was to do business, namely to buy clothes and take them back to Nigeria.  He said he bought the air ticket and planned to stay in Hong Kong for 10 days, although he had not booked a hotel. He said this was the fourth time in 2015 that he had travelled to Hong Kong. He said he planned to walk around Sham Shui Po and buy shirts.  He said the US dollars seized from him were his which he brought here to buy shirts and to pay the expenses of the trip.  He said he had been instructed to deliver the pellets to Hong Kong which he swallowed in Nigeria and that he would be paid US$1,500 after he returned to Nigeria.  He said he would be contacted once he was in Hong Kong.  He claimed that whilst he knew the substance were drugs he did not know the type.

6.His travel movement record confirmed that this was his fourth trip to Hong Kong in 2015.  According to the airline company that the defendant had travelled with, he was scheduled to depart Hong Kong for Doha on 11 November 2015.

7.As part of the agreed facts, the defendant admitted and accepted that he was trafficking in the drugs seized.

8.Very little is known about the defendant except for what he has told Customs officers.  He said he attained primary school education.  He said he was a clothes trader and single.  However, Mr Christopher Grounds, for the defendant, in the course of mitigation has elaborated as to his background and circumstances.  He produced documentary records which he suggests confirm that the defendant on previous occasions when he visited Hong Kong purchased garments and Ovaltine as a trader. 

9.He explained that the defendant comes from a poor rural family and was educated up to primary level six.  He left school at the age of 14 and worked in the garment industry.  He explained that he had his own shop from 2010 to 2014.  A fire at the shop destroyed his business and he then commenced trading in clothes and Ovaltine.  He says that he came to Hong Kong from 2010 and has visited here on 9 to 10 occasions.  He produced an invoice for the sale of a large quantity of Ovaltine in the name of the defendant together with the name card of the supplier.  He also produced name cards of persons that the defendant dealt with in the garment industry. 

10.Mr Grounds submitted to me a letter from Father John Wotherspoon dated 24 May 2016 who explains that he has come to know the defendant during his weekly visits at Lai Chi Kok Reception Centre.  He explains that the defendant has been actively supporting a campaign that he has initiated to warn Africans about the danger of drug trafficking to Hong Kong. By letters and other forms of communication, inmates in the prison institutions of Hong Kong are urged to tell others of the dangers of getting involved in the drug trade and the consequences that they face here in Hong Kong by doing so.  This is a noble and worthwhile campaign and it is hoped that the message will be conveyed of the harsh realities and the catastrophic consequences of getting involved in smuggling drugs into Hong Kong or elsewhere for that matter.  Whilst this is a display of remorse by the defendant, it is something that he should have thought about when he got involved in bringing drugs into Hong Kong.  This provides little, if any, meaningful mitigation on his behalf because of the grievousness of the offence. 

11.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. 

12.Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed in R v Lau Tak Ming [1990] 2 HKLR 370 for heroin apply to cocaine.  See AG v Pedro Nel Rojas [1994] 1 HKC 342. 

13.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.”

14.Mr Grounds has submitted three cases for my reference in sentencing the defendant.  They are HKSAR v OKPO Stanley Igwebuike, HCCC 90/2016, 19 April 2016, unreported; HKSAR v CHUKWUDEBELU Ejike Remigus, HCCC 472/2015, 1 February 2016, unreported; HKSAR v OLEBUNNE Ndubuisi Ezekiel, HCCC 388/2015, 17 December 2015, unreported. Whilst the cases have some similarities to the present case, I am bound to follow and apply the sentencing guidelines as appropriate to the circumstances of the offender and the offence.

15.Mr Grounds submitted that the reason for the defendant getting involved in this crime was because of financial matters and in order to lessen the burden of the expenses he sustained for paying for his brother’s funeral and other expenses he had incurred.  This provides no justification or mitigation for the defendant committing the present offence.

16.According to the sentencing guidelines for the quantity of narcotic content involved of 326 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 Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr Christopher Malcolm Grounds, instructed by Li & Partners, assigned by Director of Legal Aid, for the defendant