HKSAR v. Moala Alipate

HCCC 86/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 86 OF 2016

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

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COURT: Defendant, please stand up. This is my reasons for sentence.

The defendant was convicted after trial of one count of trafficking in dangerous drugs, contrary to 4(1)(a) of the Dangerous Drugs Ordinance, Cap 134.

Particulars of the charge are that he, on 14 September 2015, at Counter No 5, Aisle C, Departure Hall, Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,076.8 grammes of a crystalline solid containing 1,057.2 grammes of methamphetamine hydrochloride.

Summary of facts:

In the evening of 14 September 2015, the defendant was stopped by two police officers when he was walking towards Cathay Pacific counter C5 at the airport. The defendant was then asked to bring along the two travel bags that he had with him to an interview room in the departure hall. Upon search, police officers found two Sony PS3 game consoles. Inside each of the consoles were two packets, each containing some crystalline solids. They were later found to contain the dangerous drug, methamphetamine hydrochloride, commonly known as “Ice”. The defendant was arrested.

When the consoles were later fully opened for the exhibits to be photographed, one more packet of “Ice” was found hidden in each of the two game consoles. There were, therefore, six packets of dangerous drugs in all. The six packets of drugs were tested for fingerprint and DNA materials. DNA samples were taken from the defendant. One of the six packets of dangerous drugs contained DNA material matching that of the defendant.

The prosecution case is that the defendant knew that he was carrying drugs inside the travel bag that he was in custody and control of. They also say that the defendant knew that he was in possession of some kind of dangerous drugs. They say that on the evening of his arrest at the departure hall, the defendant intended to board a plane to fly from Hong Kong to Auckland, New Zealand, while in possession of the dangerous drugs. They say, therefore, that the defendant was in possession of the dangerous drugs for the purpose of trafficking.

The defendant’s case is that he had no idea that there were drugs inside the consoles. He thought he was carrying some kind of chemicals or materials for someone to Auckland. He was told that the chemicals will be used to cleanse some money there. US$50 million to be exact. The defendant said he was promised half of 20 per cent of that amount, which was to be US$5 million.

The jury returned a unanimous guilty verdict.

Previous convictions:

The defendant is of previously clear record.

In mitigation, I heard that the defendant is 49 years old. He is a boxer and a gospel singer.

According to the character witnesses who gave evidence, either in person or through written statements, the defendant is a kind and gentle person, who is always willing to help others. The defendant would preach in churches and engage young people to advise them about life in general and for them to stay away from drink, drugs and tobacco.

The defendant found his faith early and is still a devout Christian.

Further letters written by friends, colleagues and relatives of the defendant were handed up. They all say to the defendant being a hardworking and loving individual, and honest and trustworthy person, who was always ready to help others.

Mr Arthur reminded me that the defendant must only be sentenced as a mere courier, at the bottom of the chain so to speak, and the court must not sentence him as a member of the syndicate behind the whole operation. Mr Arthur pointed out that according to the evidence of Mr Rowton, who gave evidence during trial, that this character, using the name of Michael Osei, appears to be still in operation and there seems to be no indication that the syndicate, that is, those behind Michael Osei itself, is being pursued by the law.

Mr Arthur pointed out that none of the aggravating factors set out in the Abdallah exists, except for the international element.

Mr Arthur pointed out that the defendant must be sentenced as a first offender and a person of previously impeccable good character.

I was told by Mr Arthur that as far as the defendant himself, he maintains that he did not know that he was carrying drugs. He believes that he is innocent in the sight of God.

Mr Arthur asks for the shortest possible sentence which I can impose, which will operate as a deterrent in this case.

Sentence:

The maximum sentence on conviction on indictment for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life.

According to the case of HKSAR v Tam Yi Chun, the guideline tariff for trafficking of 600 grammes of “Ice” or above is the same as that prescribed in the case of HKSAR v Abdallah for those quantities of heroin.

In the case of Abdallah, it is stated at paragraph 41 that the guideline starting point for traffickers after trial, subject to enhancement of 600 to 1,200 grammes of narcotic is that of 20 to 23 years’ imprisonment. A strictly arithmetical application of the guideline upon the 1,057.2 grammes of “Ice” in our present case would lead to a starting point of 267 months’ imprisonment. This is the starting point I adopt.

According to the case of HKSAR v Chung Ping Kun where the trafficking of “Ice” involved an international element, it must be taken as an aggravating and should attract an enhancement of sentence. The Court of Appeal laid down guidelines for the enhancement. For trafficking in “Ice” of between 500 and 1,000 grammes, the enhancement should be 1 to 2 years.

In our present, I find that it is an only reasonable inference that the defendant was intending to bring the drugs in his travel bag out of Hong Kong and into Auckland. This inference would be in accordance with the jury’s verdict. There is, therefore, an international element in the trafficking. For the quantity of 1,057.2 grammes of “Ice”, I find that the enhancement should be 24 months.

The defendant was convicted after trial. The fact that there is no evidence to suggest that the defendant is a member of a syndicate operating internationally to traffic in dangerous drugs merely means that the defendant’s sentence should not be enhanced. It is not a mitigating factor.

I find, however, that there is evidence to suggest that the defendant is a person of positive, good character, based on the evidence of all those who wrote in, as well as the three character witnesses who gave evidence in court. The defendant, however, has not shown any remorse since he is still maintaining his lack of knowledge. Balancing these two factors, I will reduce the sentence by 6 months for the defendant’s positive good character.

The defendant is therefore sentenced to 285 months’ imprisonment or 23 years and 9 months’ imprisonment.