HKSAR v. Sifonnou Oluwafemi Marc

HCCC 426/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 426 OF 2016

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

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COURT:

Defendant, you have pleaded guilty to a charge of trafficking in dangerous drugs before a magistrate sitting at the Eastern Magistrates Court on 7 October 2016. You admitted that on 12 April 2016, at the Customs Arrival Hall A, at the Hong Kong International Airport, Lantau Island in Hong Kong, you unlawfully trafficked in 542 grammes of a solid containing 427 grammes of cocaine. You have been committed to the Court of First Instance for sentence.

Defendant, on 12 April 2016, you arrived in Hong Kong on a flight via Dubai. You had departed from Abidjan in the Ivory Coast. Upon your arrival, you were intercepted at the airport and a search of your body and belongings was made and nothing illegal was found. You were suspected of internal concealment of dangerous drugs so you were therefore sent to the North Lantau Hospital for medical examination. An X-ray examination at the hospital revealed that you had concealed suspected dangerous drugs in your body. You were then transferred and admitted to the Queen Elizabeth Hospital. Between 12 April and 13 April 2016, you excreted the drugs as stated in the charge within a total of 40 pellets.

The street value, in April 2016, of the dangerous drugs seized amounted to HK$565,848.

Defendant, you are a Benin national. You are now 38 years of age and you have no previous criminal conviction in Hong Kong. In fact, I am informed by Mr Laskey, with which the prosecution agree, that you have never been to Hong Kong before. You were a pastor in Benin, married with four children aged 12, 8 and a set of twins, aged 6.

You have written a letter to me of which I have taken into account of the contents. Mr Laskey, your counsel, has said in mitigation that you had come to Hong Kong originally on a business assignment to purchase mobile phones. You were approached in Abidjan by someone who trusted you to come to Hong Kong to purchase these phones, of which you would obtain a commission. You agreed to this business proposal as you were in debt of about US$4,000, and you would receive a reward or commission in the sum of approximately $6,500 from this business deal. That would clear your debt and you would have money remaining of $2,500 for your family, had this deal gone off properly.

However, when you alighted from the plane in Dubai, you were told to contact somebody in respect of the phone business, but to your surprise, you were instead told to swallow drugs in this pellet form. You therefore reluctantly swallowed these tablets. You were threatened in the hotel room. You were told that the people knew where your family lived and therefore you reluctantly swallowed these tablets.

I had mentioned to Mr Laskey and asked him whether he was relying on the defence of duress. He said that, in law, what you said did not amount to duress, but you were just under pressure and you did what you did with extreme reluctance. I indicated to Mr Laskey, your counsel, that I did not accept that part of your mitigation that you were under pressure, nor were you threatened to swallow these 40 tablets. I therefore make it clear that I do not accept that you were forced to swallow these tablets.

I must say that I also find it quite intriguing that you, who have been a pastor for some seven years at least, running a church in Benin, had suddenly become involved in a business deal taking you to a far-off country such as Hong Kong, one to which you have never been, on the pretence of selling or buying mobile phones for which you would be rewarded a very large commission.

Although you say in your letter that this Ade, who was the person who had offered you this business proposal, had trusted you, because you are a man of God, to keep the money for the mobile phones, I must say I find this also very difficult to accept. Clearly, however, from what you are saying, is that your motivation to come to Hong Kong was to clear your debt of some US$4,000. In so doing, you took the risk of swallowing these tablets voluntarily.

The offence which you have committed is a very serious offence. You had imported these drugs within your body and you were told that they would be excreted in Hong Kong.

Defendant, for the offence of trafficking in these dangerous drugs, cocaine, the leading case is that of Lau Tak Ming and the bracket which you fall within is that between 400 to 600 grammes; a term of 15 to 20 years’ imprisonment is appropriate, after trial. Defendant, had you been convicted after trial for 427 grammes of cocaine, the appropriate starting point, after trial, would be one of 15 years and 6 months’ imprisonment.

In this case, defendant, you had imported the drugs into Hong Kong. This is considered an aggravating factor as there is an international element, and given the quantity of drugs which you had imported, an enhancement to that starting point I shall apply is one of 10 months’ imprisonment. Therefore, the total sentencing point, had you been convicted after trial, would be one of 16 years and 4 months’ imprisonment.

You had pleaded guilty at the first opportunity at the committal proceedings. This case comes into effect after the new sentencing guideline policy and you are still, therefore, entitled to the full one-third discount.

In the circumstances, you shall be sentenced to a term of 10 years and 10 months’ imprisonment.