HKSAR v. Oloyede Wasiu Olanrewaju

HCCC 475/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 475 OF 2015

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

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COURT: The accused pleaded not guilty to trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance.

The case for the prosecution was, in summary, as follows. The accused was seen coming out of a building at 175 Tai Nan Street in Sham Shui Po on 16 February 2015. There he was intercepted by officers of the Narcotics Bureau. He was found to be carrying a plastic bag which in turn contained a mooncake box which contained 50 pellets of a suspected dangerous drug.

The accused was arrested. The bag and its contents were seized and upon analysis, the 50 pellets were found to be 974 grammes of a solid containing 447 grammes of cocaine.

The street value of the cocaine was of the order of $900,000.

It was the accused’s position at trial that he was in the wrong place at the wrong time and was, in effect, framed by the police for the crime alleged against him.

He was tried before me and a jury. The only real issue in the trial was whether it was proved that the accused knew what was inside the mooncake tin and whether his purpose was the unlawful trafficking in dangerous drugs found inside the mooncake tin. Those issues, together with the other elements of the offence have, by the jury’s verdict, been found to be proved. As I say, bound up with that issue was whether the accused was, as I say, in effect, framed.

It is now my task to sentence the accused for his crime. At the time of the conduct constituting the offence, the accused was lawfully present in Hong Kong, being an Identity Card holder and was previously of good character.

By way of background, the accused has completed his secondary school education to O levels. He did that in Nigeria. Following that, he travelled to China to pursue studies in Chinese. He arrived in Hong Kong in 2008 and was married to his wife who appears to have been a fashion designer from Hong Kong. It would appear that a possible conclusion from the present circumstances is that his wife no longer wishes to remain married to him. However, that is a personal matter upon which I need not dwell.

For some time prior to his arrest, the accused worked as a mobile phone merchant. He worked on a commission basis for a company based in Nigeria. His income was about $20,000 per month. He sought to improve himself and has taken courses in Chinese and also as a security guard.

Cocaine is a dangerous drug under section 2 of the Dangerous Drugs Ordinance and schedule 1. The maximum penalty for unlawful trafficking in a dangerous drug, when tried on indictment, is a fine of $5 million or life imprisonment, or both.

The courts of Hong Kong have articulated a series of guidelines for the unlawful trafficking of dangerous drugs and, in particular, for the unlawful trafficking of cocaine. On any view, the penalties revealed in those guidelines reflect the serious view that the courts, on behalf of the Hong Kong community, take of such conduct. That such a serious view is taken reflects, amongst other things, the real danger both to an individual who takes cocaine and to the community who might have to deal with the consequences of those who take cocaine.

Cocaine is, quite clearly and manifestly, a hard drug. This was discussed in detail in the Attorney General v Rojas [1994] 2 HKCLR 69. For many years, Hong Kong has constantly fought a battle against drug trafficking in Hong Kong. The good news is that just under 500 grammes of this substance has, by the action of the police, been taken off the streets of Hong Kong. The consistent policy of the courts of Hong Kong, as I have said, in relation to sentencing for drugs of this nature is set out in Rojas and Lau Tak Ming [1990] 2 HKLR at 370. Those guidelines apply to trafficking in cocaine and that was confirmed in Rojas.

The primary policy of the courts in Hong Kong is deterrence. In the context of the unlawful trafficking of substantial quantities of dangerous drugs, family and personal circumstances almost always play but little part in the assessment of the overall sentence.

In HKSAR v Cherif Mohamed, CACC 95/2015, at paragraph 13, the Court of Appeal noted that it is also well established that family circumstances play virtually no part in the mitigation of drug offences. Macrae JA in that case observed:

“The dreadful nature of the illicit drug trade and the evil that suppliers of dangerous drugs inflict on others compel this policy position.”

As I have said, the scope for discretion in sentencing those found guilty of trafficking in dangerous drugs is very narrow indeed for long-standing and perfectly understandable reasons of policy. The consequence for the accused is that some of the very best years of his life will not be spent in freedom in the Hong Kong community; he will be in prison. Of course, the consequences are not limited to the accused, there are consequences for friends and family.

The law provides that the most critical factor for sentence in cases like these is the amount of drug that is the subject of the indictment. As counsel for both the prosecution and the defence have identified, applying the Lau Tak Ming guidelines, the appropriate sentence for offences involving between 400 and 600 grammes of cocaine is 15 to 20 years. That puts the present case in a position where I have to assess the criminality of this case upon the basis of a sentence of somewhere between 15 and 20 years’ imprisonment.

Plainly, a mathematical calculation of sentence would be unattractive and inappropriate. Taking into account the matters I have already identified, the least sentence I can conscientiously pass on the accused, taking into account the guidelines and the circumstances in which the accused committed the offence and his personal circumstances, is to impose a sentence upon the basis of a starting point of 16 years and reducing that to 15½ years, as I say, taking into account his personal circumstances and the circumstances of the offence.

That is the sentence of the court, that the accused be imprisoned for 15½ years.