HKSAR v. Otieno Millicent Akoth

HCCC 145/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 145 OF 2016

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

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COURT: The defendant, Otieno Millicent Akoth, a 37-year-old woman from Kenya, pleaded guilty before a magistrate to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, of the Laws of Hong Kong.

The particulars of offence are that on the 4th day of October 2015, at the Arrival Hall, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, she unlawfully trafficked in a dangerous drug, namely 1.07 kilogrammes of a solid containing 544 grammes of cocaine.

Before the magistrate, she also admitted the summary of facts prepared by the prosecution. The summary reads as follows:

“(1) The accused, a 37-year-old Kenyan female, was detained at the Hong Kong International Airport on 4 October 2015 after arrival on a flight from Addis Ababa, although her journey had originated from Burundi.

(2) A personal and baggage search proved negative. As internal concealment was suspected, she was sent to North Lantau Hospital where examination confirmed the presence of foreign objects in her body cavity. She was then transferred to Queen Elizabeth Hospital where she subsequently discharged a total of 100 pellets containing a substance which, after a forensic examination, proved to be a total of 1.07 kilogrammes of a solid containing 544 grammes of cocaine.

(3) US$408 was seized from the defendant.

(4) In a later record of interview, the accused stated she had been given the pellets to swallow in Burundi and had done so as she was in need of money; she had received US$4,000 as a reward; she was to travel to the mainland; she knew the pellets contained dangerous drugs but she did not know the type.

(5) At the time of seizure, the cocaine had an estimated retail value of HK$1,140,620.

(6) Travel movement record reveals the accused last came to Hong Kong on 27 August 2015 and departed on 8 September 2015.

(7) A mainland visa which permits her to enter the mainland before 5 November 2015 and to stay there for 30 days was found in the accused’s passport.

(8) The accused had scheduled to fly back to Burundi via the same route on 14 October 2015.

(9) The accused now admits and accepts that she was trafficking in the dangerous drug seized.”

In the case of Attorney General v Rojas [1994] 1 HKC 342, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to trafficking in cocaine.

According to The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370, as modified in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, for trafficking in 400 to 600 grammes of heroin, cocaine being treated equally, the sentence upon conviction after trial should be in the range of 15 to 20 years’ imprisonment.

Moreover, the importation of a dangerous drug into Hong Kong involved an international element which is an aggravating factor: see the cases cited in Cross and Cheung, Sentencing in Hong Kong, 7th Edition, pages 627 to 628, and especially the case of HKSAR v Chung Ping Kun CACC 85/2014 (2 July 2014); [2014] 6 HKC 106 at page 111 paragraph 9, where the Court of Appeal suggested a broad guideline of enhancement for the international element involving between 500 and 1,000 grammes of a dangerous drug, being 1 year to 2 years’ imprisonment.

The defendant is a widow, aged 37 years. She has three daughters respectively aged 16 years, 8 years and 14 months. She was willing to traffic in the drug in order to earn US$4,000 so as to cater for the material needs of her children.

She has written letters to the court to tell me that she admits that that was wrong and it was extremely stupid of her to be so induced. Her younger brother and a daughter of hers have also written to seek leniency for her. Father John Wotherspoon has also written a letter to me to state the defendant’s active participation in his campaign to educate and to warn people in Africa, particularly in East Africa, from engaging in drug trafficking.

Drug trafficking is a grave offence and sentencing is almost wholly dependent on established guidelines and authorities. Save in rare circumstances, personal situation matters little, and very little discretion is left to the sentencer.

Counsel for the defendant has urged on me everything that can possibly be said in favour of the defendant. The defendant, a person with clear record in Hong Kong prior to this offence, has expressed her willingness to provide information that she possesses to the Hong Kong authorities about the person who gave her the drug in the present case, but whether the information is useful will depend on the eventual outcome.

Considering the above sentencing authorities and all the circumstances of this case, the starting point should be imprisonment for a period of 18 years and 7 months. With an enhancement for the international element of 1 year, the overall starting point should come to 19 years and 7 months’ imprisonment.

As for her willingness to provide useful information to the Hong Kong authorities, one would have to wait for the outcome. If it is at all fruitful, she can appeal her sentence to the Court of Appeal, or seek a reduction from the Executive. For the time being, no credit can be given to her.

Due to her clear record and to show leniency for the sake of her young children, and especially for her active participation in Father John’s campaign, I am prepared to adopt a reduced starting point of 18 years and 6 months.

I give the defendant a full one-third discount for her guilty plea which reduces the sentence to 12 years and 4 months.

I accordingly sentence the defendant to a term of imprisonment for 12 years and 4 months.