HKSAR v. Kituyi Michael Wafula and Another

HCCC 185/2020

[2021] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 185 OF 2020

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

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COURT: Each of the accused was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. It is alleged that the 1st accused, on 9 July 2019 at customs arrival hall of the Hong Kong International Airport, unlawfully trafficked in 316 grammes of cocaine narcotic, and the 2nd accused, on the same day and at the same location, unlawfully trafficked in 508 grammes of cocaine narcotic. Both accused pleaded guilty before a magistrate on 10 August this year and they were committed to the Court of First Instance of the High Court for sentence.

I shall now come to the facts of this case. To put it in a nutshell, the accused, both of them, arrived at Hong Kong on 9 July last year with pellets of cocaine concealed inside their bodies. A total of 126 pellets were involved altogether. On that day, they disguised themselves as a married couple and arrived by flight from Nairobi, Kenya via Addis Ababa, Ethiopia.

At the time of the arrest, both the 1st accused and the 2nd accused were in possession of itinerary and hotel booking. In addition, the 1st accused had US$1,500 cash and the 2nd accused had US$1,400 cash on their persons. The 2nd accused also possessed a marriage certificate, indicating that she was married to the 1st accused.

Subsequently, the 1st accused discharged 56 pellets containing a total of 558 grammes of a solid containing 316 grammes of cocaine after being detained in hospital for six days.

The estimated street value of those drugs is about HK$792,360.

The 2nd accused discharged 70 pellets containing a total of 692 grammes of a solid containing 508 grammes of cocaine after being detained in hospital for five days.

The estimated street value of those drugs is about HK$982,640.

Upon his arrest on 9 July last year, the 1st accused stated under caution that the 2nd accused was his wife. He said he swallowed the foreign object in Ethiopia. He did not remember how many pellets he had swallowed and he did not know what he had swallowed.

At an interview conducted under caution on 11 July last year, the 1st accused said that indeed he was single and he met the 2nd accused in Kenya about one hour before the trip to Hong Kong. She was introduced to him by a female called Virginia. He came to Hong Kong for the purpose of buying electronics for Virginia in return for commission, and he had no idea who paid for the air tickets or who arranged for the accommodation. The flight itinerary, hotel booking were given to him by the 2nd accused in Ethiopia about one hour before their departure. Also, the 2nd accused had requested him to sign on the marriage certificate under his name.

He followed the 2nd accused to a house in Ethiopia and swallowed the pellets and he did not have any reward for doing so. He had no knowledge of the arrangement after arrival in Hong Kong, and he further said that the US currency found on him was given to him as pocket money by the 2nd accused.

In respect of the 2nd accused, upon her arrest on 9 July last year, she said under caution that the foreign objects inside her body were drugs and that she had swallowed 70 number of drugs in Kenya. She did not know what type of drugs it was and she would receive US$300 as a reward.

Both accused now admit and accept that they were knowingly in possession of the subject dangerous drugs seized from them respectively for the purpose of trafficking. That is the facts of this case.

I shall now come to the background of the accused and their mitigation. The 1st accused is a Kenyan male of 43 years. He was educated up to secondary school level. According to his antecedent statement, he is single and lives in Nairobi of Kenya where he worked as a farmer earning about US$400 per month. He has no previous criminal conviction in Hong Kong.

In his oral mitigation, counsel for the 1st accused, Mr Phillip Ross, informed this court that he used to be a runner and then he was injured, as a result of which he stopped running. He came to know a female called Virginia who was in the business of selling electronics as a wholesaler. The 1st accused was a person who did a lot of travelling and that on this particular occasion he was invited to go to Ethiopia by Virginia and then, where he met the 2nd accused with the drugs swallowed and arranged for him to come to Hong Kong.

In support of mitigation, counsel also urged this court to take into account a letter and further documents prepared by Father Wotherspoon who runs an anti-drug campaign. I shall come back to this matter later after mentioning about the background of the 2nd accused.

The 2nd accused is a 34-year-old Kenyan female. She is a widow and lives in Nairobi of Kenya with her 20-year-old son and a 17-year-old daughter. According to her antecedent statement, the 2nd accused started her spa business for more than five years, earning around 700 to US$1,000 per month but her shop was closed in April 2019. She has no previous criminal record in Hong Kong.

In mitigation, counsel for the 2nd accused, Mr Hingorani, submitted that the 2nd accused agreed to transport the drugs to Hong Kong to better support her family and to give her children a better life and education. Since her arrest, her son has discontinued his studies and her daughter has had to live with a friend. Counsel stated that the 2nd accused is very remorseful and deeply regrets that she has brought these consequences upon her children.

A total of four documents were also submitted on behalf of the 2nd accused. The first one is a handwritten letter prepared by the 2nd accused herself, setting out her personal background and that she informed the court that she committed the offence to support her family and she is deeply remorseful. The second letter is a letter from a chaplain of the Correctional Services Department who said that she is a lady of good nature and plead for leniency on her behalf. There is an e-mail from a lady friend in Kenya who is now taking care of the 2nd accused’s daughter, and she had known the 2nd accused for 20 years and testified to her person as of good nature. And the fourth one was an e-mail from the son of the accused who also plead for leniency on her behalf.

Like the 1st accused, counsel for the 2nd accused also submitted a letter and some attached documents prepared by Father Wotherspoon about the accused having joined his anti-drug campaign. Both counsel urged this court to impose or to grant additional discount to the accused for their participation in this campaign.

It is noted from the documents submitted by both counsel that indeed the letters that Father John had written for both accused, they are basically quite the same apart from the fact that the letter for the 1st accused contained one more paragraph relating to a meeting on 17 January this year at Kenya with the deputy director of narcotics.

The attached documents are also all the same in respect of both accused. They bear photographs of Father John at various places, to prove his presence of meeting up certain people in Kenya and also Ethiopia, and that those documents attached to the letter, as far as both accused are concerned, they are sort of report by journalists in Kenya or Ethiopia speaking about the general situation of drug trafficking by African drug couriers to Hong Kong and the situation of their arrest and imprisonment in Hong Kong, about the number of persons arrested or detained, etc.

They contain very general information but without any specific reference to information obtained from both accused. Nonetheless, Father John testified to the fact that he has obtained information on drug trafficking from both accused of which he passed on to the authorities in both Kenya and Ethiopia in about middle of January this year.

Counsel also confirmed in their mitigation that since after January this year, both accused continued to participate in the campaign by meeting up or discussing with Father John from time to time. Counsel cannot give any further information about whether those information provided by the accused was useful, in that it resulted in any useful result in the investigation. Counsel also cannot say whether anybody was arrested or identified as a result of those information, or, to summarise, I will say that no specific contribution or meaningful use I can collect from what has been submitted to me so far.

While the Court of Appeal said in the case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 that a sentencing judge has a discretion to allow a token discount of no more than 3 months for participation in Father Wotherspoon’s campaign, the Court of Appeal also expressed the view that this is a matter that the Executive is better equipped to perform.

In my judgment, the matter should best be left with the Executive to assess the degree of contribution and its effectiveness of both accused if they continue to participate in the campaign, and it is for the Executive to decide whether such contribution should be awarded by use of the executive power of clemency.

I take a view that at this stage, it is not appropriate to exercise my discretion to order a further discount for both accused’s participation in the campaign. That matter should be left for the Executive to address, and both accused are encouraged to continue their participation in the campaign in due course.

I shall now come to the sentence to be imposed. In sentencing, I have considered the whole circumstances of the case including the type and the quantity of the drugs involved, the background of the accused and the mitigation put forward by counsel on their behalf. It has been said by the courts time and time again that personal circumstances cannot affect a sentence for such a serious crime as international drug trafficking unless they are exceptional circumstances.

In the case of both accused, given the seriousness of the offence, no meaningful mitigation can be advanced apart from their plea of guilty. And in the case of both of them, I accept that they pleaded guilty at the first opportunity.

For sentence involving trafficking in cocaine, it has been held that the guidelines laid down for heroin should be applied. The presence of any international element is an aggravating factor calling for an enhancement of the sentence.

The Court of Appeal stated in the case of HKSAR v Abdallah [2009] 2 HKLRD 437 that if any international element is involved in the trafficking in up to 1,000 grammes of dangerous drugs, there should be an enhancement of sentence up to 2 years. A broad guideline on the level of enhancement for cocaine is given in the case of HKSAR v Chung Ping Kun [2014] 6 HKC 106.

I shall first come to the 1st accused’s sentence. The guidelines in Lau Tak Ming [1990] 2 HKLR 370 applied to trafficking in cocaine of up to 600 grammes. According to these guidelines, trafficking in cocaine where the narcotic content ranged between 200 grammes and 400 grammes, a sentence between 12 to 15 years’ imprisonment should be imposed after trial.

The 1st accused was involved in the trafficking of 316 grammes of cocaine narcotic. The appropriate starting point is therefore one of 13 years and 8 months’ imprisonment. That is, 164 months.

On the guideline set out in the case of Chung Ping Kun, the appropriate enhancement for international element ranged from 6 months to 1 year for trafficking between 250 and 500 grammes of cocaine. In all the circumstances, I consider that an enhancement of 7 months is appropriate. The enhanced starting point is therefore one of 171 months.

The 1st accused pleaded guilty at the earliest available opportunity and he is entitled to a full one-third discount. Nevertheless, I do not see any other mitigating factor that warrants further reduction. The sentence for the 1st accused would therefore be one of 9½ years. That is 114 months’ imprisonment.

In respect of the 2nd accused, according to the case of Lau Tak Ming, the trafficking in cocaine where the narcotic content ranged between 400 grammes and 600 grammes, a sentence between 15 to 20 years’ imprisonment should be imposed after trial. The 2nd accused was involved in the trafficking of 508 grammes of cocaine narcotic. The appropriate starting point is therefore one of 17 years and 8 months’ imprisonment.

On the guideline set out in the case of Chung Ping Kun, the appropriate enhancement for an international element ranged from 1 year to 2 years for trafficking between 500 and 1,000 grammes of cocaine. In all the circumstances, I consider that an enhancement of 1 year is appropriate. The enhanced starting point is one of 18 years and 8 months. That is 224 months.

And I wish to emphasise at this stage that in the sentencing of the 2nd accused, I do not take into account anything said by the 1st accused under caution, as stated out in the Summary of Facts.

The 2nd accused pleaded guilty at the earliest available opportunity and she is also entitled to a full one-third discount. There being no other mitigating factor available, the ultimate sentence for the 2nd accused is therefore one of 12 years and 5 months’ imprisonment. That is, 149 months.

So both accused, please stand up. The 1st accused, you are sentenced to 9 years and 6 months’ imprisonment; and the 2nd accused, you are sentenced to 12 years and 5 months’ imprisonment.