HKSAR v. Ssemanda Micheal

HCCC 417/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 417 OF 2016

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

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COURT:

Defendant, on 30 September 2016, before a magistrate at the Eastern Magistracy, you pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 31 March 2016, at the Arrival Hall of Hong Kong International Airport, you unlawfully trafficked in 794 grammes of a mixture containing 499 grammes of heroin hydrochloride.

On 31 March, you arrived at the Hong Kong International Airport on a flight from Uganda via Doha. You were intercepted by Customs and a personal and baggage search proved negative. But as you were suspected of concealing drugs within your body, you were sent to North Lantau District Hospital for examination. The medical examination confirmed the presence of foreign objects in your body. You were cautioned and asked what was inside your body. You replied “Drugs, but do not know what kind of drugs they were”. You were then transferred to the Queen Elizabeth Hospital where you eventually discharged 62 packets of the dangerous drugs as mentioned in the charge.

In a cautioned interview, you said the purpose of coming to Hong Kong was to bring the drugs and pass them to someone in Hong Kong. You had digested about 62 packets of the drugs which had been given by a Nigerian male through an agent called John. You had been promised a reward of US$2,500 but had yet to receive the money. Upon arriving in Hong Kong, you would call John who will then give you instructions.

The estimated retail value at the relevant time for the heroin was HK$587,560.

You are 30 years old and a national of Uganda. You have no criminal convictions in Hong Kong. You are married now with four children. Your fourth child and youngest was born after your arrest in Hong Kong. You are the sole breadwinner of your family in Uganda and your mother is fully dependent on you. Until you were arrested, you had run your own business in the garment trade for many years in Uganda. You had travelled in the past, you say, to China to buy garments.

Your counsel, Mr James Sherry, has informed this court that the reason for your committing this offence is because you are in desperate need for money. You were supporting your family and needed to pay for your mother’s medical expenses. When the ring leaders or the traffickers knew that you had made trips to China previously, those traffickers then used you knowing that you were in desperate and dire financial situation, to bring these drugs into Hong Kong. You risked your health by ingesting these packets of heroin all because you were in desperation to assist the security of your family. Despite a promise that you will receive payment for bringing these drugs into Hong Kong, you had not received any benefit as this was only to be given to you once the drugs were delivered.

Mr Sherry has attached a letter from Father John Wotherspoon dated 1 December 2016, in respect of his contact with you whilst you have been remanded at Lai Chi Kok Reception Centre and in Stanley Prison. In summary, Father John Wotherspoon has stated that since your arrest, you have assisted in combating drug trafficking activities in your home country of Uganda by assisting him, Father Wotherspoon, to spread the message via a website to discourage people from bringing or being enticed to bring drugs into Hong Kong and as a result of which less Africans have been arrested for bringing drugs into Hong Kong.

Mr Sherry had originally asked for a further discount in respect of this aspect. However, I had informed Mr Sherry that I have not previously granted any special discount in respect of this matter. In any event, I have referred to the two Court of Appeal cases. That is HKSAR v Masham Deborah James CACC 381/2015 and HKSAR v Akinyi Grace Syliva CACC 342/2015 where the Court of Appeal had not permitted or had given provision for the like assistance through Father Wotherspoon.

Mr Sherry recognises that the most significant mitigating factor in your case is your early plea of guilty at the committal proceedings before a magistrate.

Defendant, you had been trafficking in the drugs of heroin hydrochloride. The relevant guideline case for trafficking in dangerous drugs of heroin is that of The Queen v Lau Tak Ming. For amounts of between 400 to 600 grammes, the starting point if you had been convicted after trial, would be one of between 15 and 20 years’ imprisonment. For the 499 grammes of heroin hydrochloride that you were trafficking in, had you been convicted after trial, I would have taken a starting point of 17 years and 3 months’ imprisonment. You were bringing these drugs into Hong Kong from Uganda. This calls for an enhancement of the starting point as an international element is involved and in following the case of HKSAR v Chung Ping Kun CACC 85/2014, the appropriate enhancement in respect of that quantity of drugs is one of 1 year’s imprisonment.

Defendant, therefore, the sentencing point had you been convicted after trial, would have been one of 18 years and 3 months’ imprisonment. Given your early plea of guilty, you will be entitled to the full one-third discount and the sentence you shall therefore serve, will be one of 12 years and 2 months’ imprisonment.