HKSAR v. Irumah Ibe Ben

HCCC 155/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 155 OF 2016

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REASONS FOR SENTENCE

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

2.The particulars of the offence were that the defendant on 11 October 2015 at the Customs Arrival Hall at the Hong Kong International Airport unlawfully trafficked in a dangerous drug, namely 1,250 g of a solid containing 515 g of cocaine. 

3.The facts as agreed by the defendant giving rise to the offence can be briefly stated as follows.  The defendant is a 35 year-old Nigerian male.  On 10 October 2015, he departed from Cadjehoun, Benin (a country located in West Africa) and arrived in Hong Kong on 11 October 2015 having travelled from Nairobi, Kenya and Dubai, United Arab Emirates.

4.Upon his arrival in Hong Kong in the late evening, he was intercepted by Customs officers.  A search of his body and of his belongings was conducted but nothing illegal was found.  The Customs officers suspected that he may be concealing drugs internally and accordingly he was sent to hospital for medical examination. 

5.An X-ray check at the hospital revealed that he had foreign objects in his body cavity.  The following morning he discharged 73 pellets which was later confirmed to contain the quantity of drugs as charged.

6.The defendant was arrested and cautioned but remained silent.  Also found and seized from the defendant were two mobile phones and cash of various currencies, including US $3,250. 

7.The street value of the drugs at the time of the offence was $1,332,500. 

8.There is very little known about the defendant, other than what he has informed the authorities and what has been submitted to me by Mr John Dunn, counsel for the defendant. 

9.The defendant claims he received tertiary education in Nigeria in Chemical Engineering and that he subsequently worked as a mobile phone merchant, earning several hundred US dollars per month.  It is submitted that he is married with two daughters, aged 1 year and 8 months, and 6 months respectively.  It is also submitted that he was living with his wife and children in Lagos, Nigeria.  At the time of the offence his wife was pregnant with their second child.  It is submitted that as a result of his business he has travelled frequently to Hong Kong to purchase goods.  I am informed that between 2008 and 2015 he has travelled to Hong Kong on 45 occasions.  He has a clear record in Hong Kong and I am informed that that is the case also in Nigeria.  It is submitted that he committed this crime because of financial difficulties, largely due to the fact that his elderly father, who is 95 years of age, needed an operation.  A drug dealer knew that he frequently came to Hong Kong and approached him to smuggle the drugs in question. 

10.Mr Dunn on the defendant’s behalf acknowledges that he has committed a serious crime and that he faces a severe sentence.  This is also acknowledged personally by the defendant in a letter that has been submitted to me. 

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.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.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.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. 

14.According to the sentencing guidelines for the quantity of narcotic content involved of 515 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. 

15.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.  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 g .  It was suggested that the level of enhancement for between 500 and 1,000 g, is 1 to 2 years.  Accordingly, the starting point will be increased by 1 year to 18 years and 6 months’ imprisonment.  

16.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 (Ag) of Department of Justice, for HKSAR

Mr John Christie Dunn, instructed by Massie & Clement, assigned by Director of Legal Aid, for the defendant