HKSAR v. Oscar Ejike

DCCC 1195/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1195 OF 2009

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Reasons for Sentence (D4)

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1.D4 pleaded guilty to 1 charge of possession of 0.6 grammes of herbal cannabis (charge 3). He was found guilty after trial for the offence of trafficking in 30.2 kilogrammes of herbal cannabis (charge 2).

2.In respect of the 2^nd charge D4 was jointly charged with D3. D3 pleaded guilty to 2^nd charge before the commencement of trial and had been sentenced on the last occasion.

Facts of the Case

3.This case involved D3 and D4 collecting 2 suitcases of herbal cannabis from the importers (D1 and D2) on the same day D1 and D2 landed Hong Kong with the 2 suitcases full of drugs.

4.When collecting those drugs D4 had with him a small packet of herbal cannabis in his shirt pocket, which formed the subject matter of the 4^th charge.

D4’s Personal Background

5.D4, aged 19 (I accept the finding of his bone test for his age), a self claimed national of Nigeria. His identity is a total mystery to the investigating authorities as well as to court. The document of identity provided by D4 to court through his counsel indicated D4 was by the name of OBIAERI Nnaemezie Chukwudalu who was meant to be born on 15 August 1984, which suggested D4 should be 25 years and 8 months old. D4’s bone test however indicated he is only 19 years of age. With the wide gap of 6 years, this court is unable to accept his genuine identity to be that of Nnaemezie Chukwudalu OBIAERI.

6.In his mitigation put forward by D4 through his counsel, D4 said he came to Hong Kong on a business visa for 2 weeks in August 2008 to engage in mobile phone business. Nevertheless D4 was said to have no fixed place of abode in Hong Kong. The lack of fixed abode makes a regular business trading very unlikely. D4 said he entered Hong Kong legally with the use of a business visa, yet D4 never seems to have a passport with him. The only document of identity D4 produced is a photocopied Nigerian National Identity card which does not bear D4’s identity (at least as far as the age is concerned).

Starting Point for Sentence

7.Counsel on behalf of D1, D2 and D3 had dwelled at some length on the last occasion about the proper starting point for sentence this court should adopt. A discussion of the various authorities had been attended to on the last occasion, which I do not find it necessary to repeat as D4 was with us in court on the last occasion. In short, the starting point I considered appropriate for sentence was a term of 6 years imprisonment after trial for the importation and/or trafficking of 30.2 kilogrammes of herbal cannabis.

8.Should D4 be treated differently to D3? I accept there was no evidence before court to indicate D4’s association or connection with the drug supplier “America” in Johannesburg.

9.The fact that D4 also came from South Africa is neither here nor there.

10.It is not exactly clear why D4 was in Hong Kong. How did he come here? By what travel document did he enter Hong Kong with? What is his genuine identity? Did he come for the sole purpose to act as a receiver for the onward sale of the bulk of drugs? Was he recruited solely for collection of the drugs? All the above were so much of a mystery for which the court is not in a position to come to a fact finding in light of the scanty evidence available in the case.

11.I do accept defence’s mitigation that the defendant ought to be given the most benevolent construction of the evidence placed before court. On the assumption that D4, a person whose’ credibility is much in doubt, is not associated with the actual importation, and on the assumption that he was recruited locally for the collection of the drugs alone, I am prepared to adopt a lower starting point of 5½ years imprisonment.

Sentence

12.For the 2^nd charge D4 was found guilty after trial. Clear record is not accepted as a strong mitigating factor for an offence as serious as drug trafficking. In respect of the 2^nd charge I sentence D4 to a term of 5 ½ years imprisonment.

13.In respect of the 3^rd charge D4 only possessed a small quantity of herbal cannabis. In was said in his mitigation he had the drug for his own personal consumption. Defence counsel also said D4 was not in a position to pay any fine for the 4^th charge. I impose a term of 2 months imprisonment, which represents a 1/3 discount from a starting point of 3 months imprisonment. Drug trafficking and possession of the drugs for personal consumption are certainly offences of a different nature, which ought to be treated separately. Nevertheless, taking totality into consideration, I do order 1 month of this 2 months’ term to be served concurrently and the balance of 1 month to be served consecutively with his term for the 2^nd charge.

14.The total duration is a period of 5 years 7 month in respect of his two charges.