HKSAR v. Okeke Jude Ikechukwu

HCCC 154/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 154 OF 2016

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REASONS FOR SENTENCE

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1.On 24 March 2016, the defendant pleaded guilty to trafficking in a dangerous drug in committal proceedings at Eastern Magistracy. He was committed to the Court of First Instance for sentence.

2.The facts giving rise to the present case are unfortunately becoming a familiar and worrying trend in drug trafficking cases coming before the courts in Hong Kong.  Such cases concern foreign nationals, mainly from Africa, smuggling heroin or cocaine into Hong Kong, by swallowing pellets of the drug and transporting them in their body cavity in order to make it more difficult for the authorities to detect.

3.The defendant is a Nigerian national who at the time of the offence was 46 years old.  In the evening of 31 October 2015, he arrived in Hong Kong on a flight that had originated in Lagos, Nigeria with a stopover in Dubai.  He was intercepted at the Arrival Hall of the Hong Kong International Airport and searched by Customs officers.  Nothing suspicious was found in his luggage although he had on him a mobile phone with five Sim cards and US$2,762 cash. 

4.Customs officers suspected that he was concealing dangerous drugs within his body.  He was taken to hospital for medical examination and an x-ray revealed that he had concealed in his body cavity a number of foreign objects.  The following day he discharged 47 pellets which were later found to contain a total of 1,022 g of a solid containing 534 g of cocaine.

5.He later admitted under caution that he came to Hong Kong to bring the drugs; he had swallowed the pellets of cocaine which were given to him by a friend in Lagos; he was told to wait for someone who was unknown to him to collect the drugs in Hong Kong; and he had been paid a reward of US$3,000, part of which he left at home and the rest he brought with him to Hong Kong. 

6.The street value of the drugs at the time of the offence was HK$1,089,452. 

7.Very little is known, or at least cannot be reliably verified, about the defendant.  I am told that requests from the Customs Department to the Consul General of Nigeria for information about the defendant have fallen on deaf ears.  

8.The only information before the Court about the defendant comes from him and what has been submitted on his behalf.  He says he came here from Nigeria for the first time.  He claims he is married and his wife is 33 years old.  He says he has a daughter aged 2 and three sons aged 4, 6 and 8.  He claims he lives in Lagos with his family where he operated a business selling mobile phones from which he earned US$460 per year.  His father has passed away and his elderly mother is still living.  He claims he agreed to transport the drugs to Hong Kong because of financial difficulties and in order to pay for an operation for his wife.

9.Mr Peter Cahill, counsel for the defendant, elaborated upon the defendant’s background and involvement in this case.  He explained that the defendant had various occupations trading in mobile phones and a car dealer in spare parts.  He said that in January 2011 an explosion took place in his neighbourhood destroying his home and nine others.  He was blamed for the explosion and the damage to the properties, and it was demanded that he pay compensation in the sum of US$56,000.  He was able to pay US$4,000 from his savings but was unable to pay the rest.  He and his family members also sustained injuries as a result of the explosion.  His wife suffered burn injuries to her hand and his daughter suffered scarring.  His wife needed surgery to her hand and was deeply affected by the injury that she sustained. He needed money to pay the compensation that had been demanded of him and the surgery for his wife.  It was then that a friend got him involved in the present offence.

10.Mr Cahill submitted that the defendant’s health had deteriorated whilst in custody.  He produced a medical report which revealed he had been treated for blood pressure and had monitored his blood glucose level. It was also reported that a 4 cm lipoma found on his back which was benign and appropriate treatment would be prescribed.  Otherwise the report said that his general health condition remained stable.  There were no medical issues that would provide any meaningful mitigation in the circumstances of this case. 

11.It was also noted that the defendant has participated in a campaign that has been initiated by Father John Wotherspoon where inmates of the prison institutions who are in custody for drug trafficking communicate with others through correspondence and the social media warning of the perils of drug trafficking to Hong Kong.  Whilst this is a very worthwhile campaign and hopefully will deter would-be drug traffickers in the future, the fact remains that the defendant by concealing the drugs internally was well aware of what he was doing and would have appreciated the difficulties it posed the authorities in detecting that he was transporting drugs into Hong Kong. 

12.Overall the submission on behalf of the defendant provided little, if any, meaningful mitigation because of the grievousness of the offence.  I will bear in mind where I can, and as is appropriate, the personal circumstances of the defendant. 

13.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. 

14.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.”

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

16.According to the sentencing guidelines for the quantity of narcotic content involved of 534 g of cocaine, the defendant is in the band of 400 to 600 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 15 to 20 years’ imprisonment. According to the narcotic content of cocaine in this case and bearing in mind the information and submissions before me, I will adopt a starting point of 17 years and 6 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. 

17.The sentencing guidelines also require an enhancement for the international element of bringing the drugs into Hong Kong. The level of enhancement for an international element in the trafficking of drugs was discussed in HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal explained that the enhancement for amounts above 1 kilogramme would not be less than 2 years’ imprisonment in addition to the tariff as fixed.  The matter was further discussed in HKSAR v Chung Ping Kun [2014] 6 HKC 106 were a broad guideline was suggested where the quantity of drugs is less than 1,000 grammes.  It was suggested that the level of enhancement for between 500 and 1,000 grammes, is 1 to 2 years.  Accordingly, the starting point will be increased by 1 year to 18 years and 6 months’ imprisonment. 

18.Mr Cahill sought to argue that the defendant should receive a reduction to his sentence for the assistance that he rendered and was prepared to give to the authorities.  He noted that in the defendant’s record of interview he mentioned the name of the friend who got him involved in smuggling the drugs to Hong Kong and also provided a contact telephone number for him.  In addition, he noted that despite the defendant’s acknowledgement of his guilt and provision of information, customs officers did not carry out a controlled delivery which he would have participated in had they undertaken it.  As rightly pointed out by Ms Sabra Lo, counsel for the prosecution, the reason why no controlled delivery operation took place was because the drugs were concealed internally and he had to be taken to hospital for the pellets of drugs to be discharged.  As to the provision of the name of the friend and his telephone number in Nigeria, it was given as part of his acknowledgement of and explanation for his involvement in bringing the drugs to Hong Kong.  There is nothing before me to substantiate whether the name and telephone number is correct and whether anything of value has come of it to the authorities.  If it proves to be of value in the future, then in the appropriate circumstances it can be the subject of submissions to the executive.  Otherwise as the matter stands, and in the present circumstances, there is no basis to give a reduction to the defendant’s sentence for the purported assistance as submitted by Mr Cahill. 

19.The defendant is entitled to a one-third discount for his early plea of guilty and accordingly he is sentenced to imprisonment for 12 years and 4 months.

Ms Sabra Lo, SPP of Department of Justice, for HKSAR

Mr Peter Julian Cahill, instructed by Jal. N. Karbhari & Co, assigned by Director of Legal Aid, for the defendant