HKSAR v. Bisaso Allan

HCCC 250/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 250 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 had pleaded guilty earlier in the Magistrates’ Court to one count of trafficking in a dangerous drug and was committed before me for sentence.

Prior to today, it was discovered that the particulars of the offence which he was committed for had a typographical error in that it did not reflect the actual amount that was in the summary of facts. So this morning before me, the prosecution applied for the charge for which the defendant was originally committed for sentence to be amended.

In view of the fact that the defence has not objected to this, and also, in the circumstances, as I said I consider it a typographical error so I allowed the amendment.

The amended charge was again put to the defendant who pleaded guilty.

The amended charge reads that on the 22nd of November 2015, the defendant was arrested at Chek Lap Kok Airport, in that he unlawfully trafficked in a dangerous drug, namely, 605 grammes of a mixture containing 287.8 grammes of heroin hydrochloride, and 98.1 grammes of 6 monoacetylmorphine hydrochloride, and 957 grammes of a solid containing 536 grammes of cocaine.

The summary of facts was also amended because certain additional matters which was said by the defendant after being cautioned have been added to summary of facts and, again there had been no objection from the defence and so the new amended summary of facts was again put to the defendant who admitted them.

The facts reveal that the accused is a 44-year-old Ugandan male, and arrived at the Hong Kong International Airport on 22 November from Nairobi, Kenya, via Doha.

Nothing was found on his person or baggage, but Customs officers suspected there may be internal concealment, so the defendant was sent to the hospital where it was confirmed that there were foreign objects in his body cavity.

Subsequently, on 12 separate occasions the defendant discharged a total of 95 packages, and the packages contained the dangerous drug as indicated in the charge.

The total estimated retail value of the drugs would be in the region of HK$1,484,340.

The defendant arrived in Hong Kong on 22 November and was booked to leave Hong Kong on 27 November last year. He was going to fly via Doha to Nairobi.

Initially, the defendant said he was coming to Hong Kong for business and that he did not know who he was to give the stuff to because he would be contacted in Hong Kong upon arrival. Later, the defendant admitted that he swallowed these packages for a reward of about US$5,000 to US$6,000. Mr Marray, in mitigation, had pointed out that he had not collected that reward yet.

The defendant gave the reason for his agreeing to commit this present offence because of financial loss in a shipment of goods which was on the way from Kenya to Uganda.

He said that he had been given the drugs to swallow in Kampala and that he had used his own money to buy the air tickets to Hong Kong. He said that on arrival in Hong Kong he was to call the person who had given him the drugs in Kenya, and who would then arrange for the collection in Hong Kong.

He said that he suspected that the packages contained drugs and not money, as he was told.

In mitigation, Mr Marray has said everything he could possibly say on behalf of the defendant, most importantly, the early plea of the defendant and also his remorse as reflected when he was arrested by the police.

It is without a doubt that 99 per cent of the drug traffickers that come before this court had been used by the drug lords because they are all having financial difficulties, and the defendant is no different.

I do appreciate the financial poverty that visits a lot of places in Africa and China and South America, and it is a world-wide problem, and it is to these people that the drug lords look towards carrying these drugs. These drug lords lose nothing because they do not pay them until a successful transaction has been done, and what happens are these drug mules then put their life at stake, because not only if caught they are expected to spend a long time in prison, but if these packages should burst then they may also lose their lives.

So it is a sad reflection of this world, but, unfortunately, it is what goes on.

The defendant’s background is no different. He is 44 years old. He has a big family. He has had, as Mr Marray has detailed, not only his own children from two wives and a girlfriend, he is also taking care of children from his brothers who have passed away.

It is also a sad fact, as reflected in his wife’s letter to him, that whilst he has gone, some members of his family have taken advantage of that and taken away many of his possessions.

However, as I have said, the court has to stand firm because the stories that we hear are tragic, but it is all too common. Deterrent sentences have to be given because we have quite an open border, so a lot of drugs flow into Hong Kong and our authorities, both the Customs and the police, are fighting a grave battle to stop these drugs from being disposed into our society and causing great tragedies in our society, which is causing now and will be for a long time.

Whilst the courts have great sympathy with each person that comes before this court because of financial difficulty that they are tempted into this nefarious evil trade, nevertheless, I have to uphold the principle of a deterrent sentence to deter others from indulging in a similar manner.

Father Wotherspoon has always been very helpful in these courts. He has also been waging an almost impossible battle to try and educate the people in the African countries about the danger they face in trafficking drugs into Hong Kong because of the serious sentences that are handed down.

From Father Wotherspoon’s letter, I am encouraged that the education system that he has put into place has been met with some success, and hopefully it will decrease the number of people coming here without any idea of the serious consequences of trafficking drugs into Hong Kong.

It is also encouraging to see that the defendant and others like him, whilst in prison, is cooperating with Father Wotherspoon for the sake of their countrymen. I hope that this will continue as long as possible.

Turning to sentencing. As Mr Marray has correctly pointed out, sentencing guidelines in relation to heroin and cocaine, are the same. It stems from the guidelines laid down in Lau Tak Ming for heroin; and the case of Rojas in 1994 saying that the guidelines for trafficking in cocaine should follow the heroin guidelines. The latest guideline is from Abdallah in 2009, and it was suggested that for trafficking in 600 to 1200 grammes it would merit, normally, a sentence of between 20 to 23 years after trial.

So the total amount of drugs in this case adds up to a quantity of 921.9 grammes. So it will fall in the 21 to 22 year starting point.

Considering the background of the case, the facts of the case and the defendant’s background, I would take a starting point of 21 years. Then there is also the aggravating factor in this case, which is the import into Hong Kong which we normally call the international element.

According to the Chung Ping Kun CACC 85/2014, for trafficking in between 500 to 1,000 grammes, the enhancement would be in the region of one to two years.

I would therefore enhance the sentence of 21 years by 1½ to 22½ year starting point. Giving the defendant the full one‑third discount, he is therefore sentenced to 15 years’ imprisonment.