HKSAR v. Ezenduka Chinedu Hilary

HCCC 132/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 132 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The Particulars of Offence provide that on 3 August 2014, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 663 grammes of a solid containing 320 grammes of cocaine.

The Summary of Facts admitted by the defendant provides that:

“At the small hours on 4 August 2014, a team of police officers mounted an anti-dangerous drug operation near a room in the Mirador Mansion, Nathan Road, Kowloon (“the premises”). At about 0203 hours, when no one answered the door, police broke into the premises.

Upon entry, they found the defendant walking towards the toilet. Officers stopped him and conducted a search. Twelve sealed plastic-wrapped pellets of suspected cocaine were found inside the wash basin. The defendant was arrested and cautioned for trafficking in a dangerous drug.

The defendant was later taken to Queen Elizabeth Hospital where he discharged, altogether, 17 pellets of suspected cocaine. The outward appearance of the pellets were similar to those 12 pellets seized by the police at the premises.

On 5 August 2014, the defendant was further cautioned and interviewed with an interpreter at the custodial ward. He admitted that all the pellets of dangerous drugs, which were seized from the premises or discharged by him at hospital, were in fact swallowed by him in Nigeria before he boarded the flight for Hong Kong, and he arrived at Hong Kong at about 1500 hours on 3 August 2014. The defendant also admitted that upon completion of the delivery, he would be awarded US$3,000.

All the pellets were later examined by a Government Chemist who confirmed that there were a total of 663 grammes of a solid containing 320 grammes of cocaine.

The street value of the dangerous drug seized is estimated at HK$680,901.

Immigration records confirm that the defendant arrived at Hong Kong International Airport at 1513 hours on 3 August 2014.”

In the Summary of Facts, the defendant expressly admitted that he knowingly had all the dangerous drug particularised in the Charge for the purpose of unlawful trafficking.

By way of personal background, the defendant is 45 years of age. He was born in Nigeria in October 1970. He received up to primary six education in Nigeria. After quitting school, the defendant worked as a garment trader. He is married with three children. Prior to his arrest, he lived with his family in Nigeria. The defendant does not have any previous criminal conviction.

Mr Neil Mitchell, on behalf of the defendant, has helpfully submitted a written Outline Mitigation, which has been duly noted by the court.

Mr Mitchell submitted that the defendant is remorseful for his act, but understands that the only real mitigation he has is his plea of guilty.

As to the circumstances leading to the present offence, I was told that due to certain terrorist activities in Nigeria, the defendant’s business was badly affected and his shop destroyed. The defendant had obtained some stock on credit but could not afford to pay. He had an outstanding debt of some US$9,000. Out of desperation, the defendant embarked in drug trafficking for a promised reward of US$3,000.

Mr Mitchell, in his written submissions, submitted that as a result of the commission of this offence the defendant leaves behind a wife; he will lose the chance of seeing his children grow into young adults; he will lose the chance of giving them guidance as a father; he remains in debt and will face the inevitable difficulty of readjusting to society as a middle-aged man with a criminal record trying to find employment following the lengthy term of imprisonment he now faces.

Letters from the defendant’s wife and daughter have been submitted to the court, the contents of which are duly noted.

However, against that and as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant offers little mitigation in serious cases of drug trafficking, which call for severe deterrent sentences in order to protect the public.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 663 grammes of a solid containing 320 grammes of cocaine.

In this jurisdiction, sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin.

In the case of R v Lau Tak Ming [1990] 2 HKLR 370, it was held by the Court of Appeal that for trafficking in 200 to 400 grammes of heroin, the guideline starting point for sentence after trial should be 12 to 15 years’ imprisonment.

The defendant had imported the dangerous drug in question from Nigeria into Hong Kong. In HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 42, the Court of Appeal held that if there is an international element in the trafficking of drugs, there should be an enhancement of the starting point in sentence. In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal held at paragraph 9 that, as a broad guideline, the level of enhancement for trafficking in between 250 and 500 grammes of narcotic should be 6 months to 1 year.

In the present case, a three-stage process is thus involved in sentencing:

(1) to take a starting point for the quantity of the drug involved;

(2) then to add to that such additional term as is warranted by the international factor; and

(3) finally, to reduce the sentence from the starting point on account of mitigating factors, including, of course, the defendant’s guilty plea.

In my view, following the principles set out above and based on the quantity of the narcotic involved (ie, 320 grammes of cocaine), the proper initial starting point for sentence in the present case should be 13 years and 9 months’ imprisonment.

Six months should be added to that by way of enhancement for the international element. This will take the starting point up to 14 years and 3 months’ imprisonment.

Finally, I shall give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 9 years and 6 months’ imprisonment.