HKSAR v. Onyeka Emmanuel Okwuchukwu

HCCC 444/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 444 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, Onyeka Emmanuel Okwuchukwu was charged with one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He pleaded guilty before the magistrate, and was committed to the Court of First Instance of High Court for sentence.

The Summary of Facts

The defendant is a Nigerian. On 31 March 2016, he arrived at the Hong Kong International Airport from Nigeria via Kenya. He was intercepted for customs clearance. He had with him US$2,980 and two mobile phones. Nothing illegal was found upon baggage examination.

As internal concealment was suspected, he was escorted to the hospital. The defendant discharged a total of 56 pellets, containing what was later confirmed to be 1.1 kilogramme of a solid containing 428 grammes of cocaine, with a street value of around $1,174,800.

The defendant in a video-recorded interview said he came to Hong Kong to buy televisions and DVDs for his electronic business in Nigeria. He was in need of money for medical treatment, and agreed to swallow around 50 pellets of the drugs to bring them to Hong Kong to someone at the Chungking Mansion. In return, he was promised his medical expenses would be paid. He claimed he did not know what was inside the packets.

He admitted before the magistrate that he was trafficking the cocaine in this case at the time.

Background and Mitigation

The defendant is a Nigerian who is 33 years of age. He is married, and has an infant child. His father has passed away, and he had a 60-year-old mother. He had no previous convictions in Hong Kong. He attained primary education and he claimed to be in the electronic business with a monthly income of around US$600.

Mr McGowan, mitigating on the defendant’s behalf, informed me that the defendant did not have any criminal convictions in Nigeria either. He was in the business of buying cheap electronic items from Hong Kong and sending them to Nigeria and had come to Hong Kong for several years.

On this occasion, as the defendant believed that he suffered from skin cancer, he agreed to traffic dangerous drugs for someone in order to earn money to treat the cancer. It has since been proved that he does not have cancer, but that he suffers from an inflammation of the skin, the condition of which would be aggravated by heat.

Mr McGowan submitted the defendant is remorseful, and he pleaded guilty at the first available opportunity. He was co-operative, and tried to assist the authorities, but he knew too little about the syndicate to be able to provide any useful information.

As the defendant claimed that the cash of US$2,980 on him was his own money, which he had saved up to buy goods, Mr McGowan asked for an adjournment so that documents could be obtained to support the defendant’s claim. On the resumed hearing, I was not provided with any documentation proving that the US dollars in the defendant’s possession was his own money.

Mr McGowan then tendered a letter written by the defendant to me, the defendant expressed his deep regret in committing this serious offence, and his anguish in leaving his family, in particular, his young daughter behind. He asked for leniency.

As the defendant claimed that he mistakenly thought he was suffering from cancer and committed the crime when the syndicate promised to pay for his medical expenses, I adjourned the matter further so that the result of a medical check on him upon his admission to the CSD could be provided for my consideration. I also understand from Mr McGowan that the defendant had not given him any instructions as to the intended application for forfeiture of the money found on him, to which the defendant claimed was his own money for his business.

The adjournment will also allow Mr McGowan to take further instructions. At the further resumed hearing, that is today, I was provided with a medical report and medical notes on the defendant. There is no reference to any rash or abnormality of skin noted by the medical officer, nor did the defendant mention anything about his skin condition, or indeed his belief that he was suffering from cancer when he was first admitted into the CSD.

Mr McGowan, after taking instructions from the defendant, indicated to me, this court, that the defendant does not wish to pursue this issue any further. Mr McGowan reiterated what he already said in mitigation, and asked this court to be as lenient as possible.

The Sentence

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. The total quantity involved here is 428 grammes, which fell into the category of 400 to 600 grammes with a starting point of 15 to 20 years, as the cases of AG v Pedro Nel Rojas and adopting the guideline of R v Lau Tak Ming.

After considering the circumstances of the offence and the quantity of cocaine involved, I am of the view that a starting point of 15 years is appropriate.

There was an international element involved, which amounts to an aggravating factor. I am of the view that an extra 9 months is appropriate to reflect this issue, see the case of HKSAR v Chung Ping Kun. The enhanced starting point is therefore one of 15 years 9 months.

The defendant had pleaded guilty at the earliest available opportunity, and I will give him the full one-third discount. Though the defendant claimed that he thought he had cancer and agreed to traffic the dangerous drugs in order to earn money to treat his cancer, and then he only found out later that he did not suffer from cancer after all. I do not find any support from the defendant’s medical history at the time he was admitted into custody of CSD. I do not consider this claim a further ground for me to reduce the sentence.

So the actual sentence for the offence of trafficking in a dangerous drug, the defendant is sentenced to 10 years 6 months’ imprisonment.