HKSAR v. Chukwuleta Sunday Freedaline and Another

HCCC 523/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 523 OF 2014

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

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COURT:

Mr Chukwuleta and Mr Modebelu, will you stand up please, both of you?

Mr Chukwuleta and Mr Modebelu, please listen carefully to everything which is said. Mr Modebelu, some of what I say in my remarks to Mr Chukwuleta refer to you as well, and they are not repeated when I come to sentencing you, so please listen carefully.

And gentlemen, what I am going to do, normally, I allow the interpreter to just interpret at the same time, but on this occasion, I am going to stop from time to time, because Miss Okoye would not be able to keep up otherwise, and I think it’s important that you understand everything that is said.

Chukwuleta Sunday Freedaline, you have been found guilty after trial of conspiracy to traffic in dangerous drugs under count 1 of the indictment, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and Sections 159(a) and (c) of the Crimes Ordinance, Cap 200. That count, I am referring to count 1, does not detail what quantity of dangerous drugs you are said to have imported on 14 May 2014. But the prosecution case to the jury, throughout the trial was that you had swallowed 50 pellets from a bowl whilst in a house in Lagos, Nigeria, and that you had travelled to Hong Kong via Addis Ababa, whereupon you had been directed by the 2nd defendant to his flat, in which you excreted all 50 pellets.

That was the essence of the prosecution’s case, and there could have been no other basis for their case against you. They asked the jury to come to that conclusion based on the evidence of PW1, Mr Okoye, and also from the evidence of what was recovered within the flat in Pak Tai Mansion, as well as your travel from Lagos at the same time as Mr Okoye, and the observations of you with the 2nd defendant and Okoye.

They asked the jury to draw the only reasonable inference which could be drawn from that evidence, which was that you had been part of a group of men carrying drugs from Lagos to Hong Kong, and that when you were seen entering Modebelu’s flat that day, it was for the purpose of excreting the drugs you had ingested in Lagos.

There was no direct evidence to identify which of the recovered pellets of cocaine you had imported. And so, respecting the verdict of the jury, this court must exercise its discretion to calculate the weight for the purposes of sentence.

At the same time, I remind myself that this was a charge of conspiracy and not a substantive offence. The actual weight of the dangerous drugs which you chose to import into Hong Kong may only be a guideline to the gravity of the offending you were convicted of, in agreeing to participate in the traffic in dangerous drugs, but it assists the court in determining what would be an appropriate sentence given that, in any event, the intended offence was carried to its conclusion.

The evidence before the court, was that there were a number of couriers that day over and above yourself and Mr Okoye. There were 319 pellets or packages recovered from Room C of Flat 14. They were found in four separate plastic bags. P17, which contained the drugs under Exhibit P10, and consisted of 29 packages; P18, containing Exhibit P11, consisting of 70 packages; P19, containing Exhibit P12, consisting of 60 packages; and P21, containing Exhibit 13, consisting of 80 packages. All of those were within a red, white and blue shopping bag.

But there was also a black plastic bag, which had P22, which contained the drugs under Exhibit P14, consisting of 80 packages, and that black plastic bag was outside of the red, white and blue shopping bag. Mr Okoye gave evidence and said he was given a bowl of 50 pellets in a room in Lagos, and he said he was scolded for not being able to swallow all 50 pellets. He said you were there, too. He had heard no one else being scolded at that time for not being able to swallow the pellets in their bowl. You were one of several others in the flat in Lagos, and although you were not seen to actually swallow pellets, the overwhelming inference was that you were doing so.

As you two travelled to Hong Kong that day, and went to Modebelu’s flat, the jury in convicting you must have accepted the prosecution case in that regard. The average weight of a pellet from P17 was 8.5 grammes; the average weight of a pellet from P18 was 10.39 grammes; the average weight of a pellet from P19 was 8.9 grammes; and the average weight from P21 was 8.67 grammes; but the average weight from the pellets in P22, which was the black plastic bag of 80 pellets, was 8.85 grammes. I have excluded from my consideration P17, because there were only 29 pellets, and I believe you would have placed all of your pellets into one bag.

I found no authority which requires me to take the lowest weight of the pellets recovered. If I did that, and was also required to take the lowest weights for the pellets recovered in respect of the other defendants, it could lead to the absurd consequence that several defendants appeared to carry the same dangerous drugs into the country. You had been convicted after trial. You did not plead guilty. You must face the logical consequences of the evidence before the jury and upon which they convicted you.

I will, however, give you the benefit of the doubt where it is logical to do so and in this case, that would be to calculate the dangerous drugs you were carrying according to the lowest average weight of pellets in the larger bags. And that would be Exhibit P21 and 8.67 grammes, which, when you multiply that by 50, would be 433.5 grammes of cocaine.

You were a drug mule. You fall to be sentenced for this one agreement to traffic in dangerous drugs on 14 May 2014, as a drug mule.

The court has heard from Mr Arthur on your behalf, and taking into consideration what he had said, and he has sensibly accepted that there is little personal mitigation which can reduce the sentence, which the court must pass for the importation of dangerous drugs into Hong Kong, for it is a very serious offence for which a deterrent sentence must be passed, and only the most exceptional personal circumstances will affect that sentence.

Nevertheless, this is not simply a mathematical exercise alone, even where the sentencing process takes place after trial. In fact, the evidence in trial allows the sentencing judge to have a far better grasp of the nature of the offending, and of the defendant, and has the discretion to fit the punishment to the crime.

The sentencing guidelines for the importation of cocaine as a substantive offence can be found in HKSAR v Lau Tak Ming [1992] HKLR 370. The starting point after trial for the importation of between 400 to 600 grammes of cocaine is 15 to 20 years. For approximately 433.5 grammes of cocaine, the starting point after trial is 15 years and 6 months. I consider that is an appropriate starting point for the offence of conspiracy to traffic that same amount, with the intention of playing your part as a drug mule.

You imported these drugs into Hong Kong from Nigeria. That is an aggravating feature for your offending. Under HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, as followed in HKSAR v Dewi Kartika Sari Binti Musli CACC 101/2012 and HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal has indicated that an appropriate enhancement of sentence for importing between 250 and 500 grammes of dangerous drugs would be between 6 months to 1 year. The starting point above will be enhanced by 9 months to 16 years and 3 months. Mr Chukwuleta, you will go to prison for 16 years and 3 months on count 1. Mr Chukwuleta, you may sit down.

Modebelu Kenenna Christian, you have been found guilty after trial of conspiracy to traffic in dangerous drugs under Counts 1 and 2 of the indictment, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and Sections 159(a) and (c) of the Crimes Ordinance, Cap 200; and also of trafficking in dangerous drugs under count 3 of the indictment, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

For the avoidance of doubt, I stress that the matters raised by the defence in trial in respect of alleged assaults or blackmail by you against Mr Okoye play no part whatsoever in my determination as to sentence. I make no findings upon that evidence at all, despite the fact that you chose to raise it and take the risk of prejudice which may result from doing so. The jury believed PW1. Nor do I take into account the one matter on your criminal record here in Hong Kong. You are to be sentenced for the charges under counts 1 to 3 and for nothing else. You will be dealt with under count 1 initially upon the same basis and for similar reasoning as your co-conspirator, Mr Chukwuleta, based upon the sentencing guidelines for the importation of cocaine found in HKSAR v Lau Tak Ming [1992] HKLR 370. However, you were not a drug mule. You were the quartermaster of stores in Hong Kong, and that will be reflected in the sentence I propose. The starting point after trial for the importation of between 400 to 600 grammes of cocaine is 15 to 20 years. And therefore for the 433.5 grammes, approximately, of cocaine, the starting point after trial is 15 years and 6 months.

You conspired to import cocaine, so there is an international element to this offending, just as there was with Mr Chukwuleta, and that starting point will be enhanced by 9 months to make 16 years and 3 months.

But there is another aggravating feature, and that is, you were far higher up the organisational chain, and were to gain significantly more than the drug mules for playing your part, and so I consider that your sentence on count 1 should be enhanced by 1 year to reflect that far greater role.

The total sentence on count 1 is therefore 17 years and 3 months for conspiracy to import what I found to be approximately 433.5 grammes of cocaine.

Like count 1, count 2 also does not detail the quantity of cocaine which it is said to cover. Count 2 is mirrored in count 1 on the indictment against Okoye under HCCC 205/2015. My finding on the weight to be attributed to that count has been based upon the 31 pellets which he said he could swallow, and which he ultimately imported.

Submissions were advanced to the court in respect of the weight which the court should find the 31 pellets represented. That weight must be the same for both your matter and his. Mr Grounds on behalf of Okoye, suggested a method of calculation which you were provided with. That calculation results in a total estimated weight of 286.558 grammes, representing the average pellet from the red, white and blue bag. I will therefore calculate the weight on that basis.

I also pray in aid my comments I made under count 1 above where appropriate.

Under HKSAR v Lau Tak Ming [1992] HKLR 370, the starting point after trial for the importation of between 200 and 400 grammes of cocaine is 12 to 16 years.

For 286.5 grammes, the starting point is 13 years and 2 months, and that is an appropriate starting point for conspiracy to import that quantity of cocaine.

Under counts 1 and 2, you conspired with Chukwuleta and separately with Okoye and others to import those drugs into Hong Kong from Nigeria, that is an aggravating feature of your offending. Under HKSAR v Abdallah, as followed in HKSAR v Dewi and HKSAR v Chung Ping Kun, the appropriate enhancement of sentence for importing between 250 and 500 grammes of dangerous drugs would be between 6 months to 1 year.

The starting point under count 1 was enhanced by 9 months to 16 years 3 months, the starting point under count 2 will be enhanced by 6 months to 13 years and 8 months.

There is also the aggravating element of the role which you played as quartermaster and co-ordinator of the drug mules after they arrived in Hong Kong, and for that role, I enhance your sentence by 1 year, making a total of 14 years and 8 months under count 2.

Under count 3, you have been found guilty of traffic in dangerous drugs in respect of the whole amount of the cocaine found within your flat on 14 May 2014. It was found within the red, white and blue bag and a further black bag, along with what I can only assume was to be a cutting agent, as the bags of soap powder and razors were found within that bag, and not loose in the flat in which you clearly lived.

You were clearly at the very least a middleman for the overall scheme, who was resident in Hong Kong to direct drug mules to accommodation where they can safely excrete the drugs which they had imported. Your name had been given to Okoye as the point man in Hong Kong, and you went so far as to purchase a new shirt for him, and to provide him with milk to assist him in discharging the pellets. You must then have also had responsibility for the onwards transfer of the drugs found within your flat.

The total amount of cocaine recovered was 2,920.95 grammes, and the value of the dangerous drugs found that day was HK$5,550,677. That is a huge amount of money, and you must have been close to the main drug-dealers to be given the responsibility of dealing in such a large quantity of drugs, and you obviously benefited from it, because we have seen the jewellery you had in your possession.

The relevant sentencing guideline in your case for count 3 is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. For trafficking in between 1,200 and 4,000 grammes of cocaine, the starting point after trial is between 23 to 26 years. For trafficking in 2,920.95 grammes, the starting point is therefore 24 years and 9 months. And although you were based in Hong Kong, you were an integral part of the importation of dangerous drugs from Lagos, and as such, I enhanced your sentence by 2 years for the international element to this organised crime.

There is a further aggravating feature, as I have mentioned previously. You were clearly an integral part of an overall syndicate with significant responsibility for the throughout of dangerous drugs which causes considerable harm to many people. You were not a drug mule caught by the possibility of easy money, and the jewellery found upon you showed that you have and substantial rewards for receiving these people into Hong Kong, and for abusing the position of trust placed upon you by the government of Hong Kong as a Form 8 holder.

As such, but taking into consideration the long sentence which you must face, I enhance your sentence by 1 year, making a total of 27 years and 9 months on count 3.

On count 1, you will go to prison for 17 years and 3 months; on count 2, you will go to prison for 14 years and 8 months, to be served wholly concurrently with count 1; and under count 3, you will go to prison for 27 years and 9 months, to be served wholly concurrently with counts 1 and 2. So you will go to prison for 27 years and 9 months.