HKSAR v. Agara Isaiah Bishop

HCCC1/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 1 OF 2014

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Before: Hon E Toh J

Date: 9 February 2015 at 10.13 am

Present: Mr Andrew J Raffell, on fiat, for HKSAR

The accused appeared in person

Offence:  Trafficking in a dangerous drug (販運危險藥物)

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

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COURT: Defendant please stand.

The Defendant was represented by counsel and had pleaded guilty and in the course of events which led up to today, he had dismissed his counsel, Legal Aid had been discharged, and he has opted to appear in person, whereupon, he had made an application to reverse plea.

I had considered his application and refused it, on the grounds that he had made a voluntary plea at the time, when he was fully conscious of what he was doing, he had very good counsel representing him, and the facts were also admitted by him.

And in view of the fact that I had refused for him to change his plea, he then elected to call a witness on his behalf in mitigation, and I allowed him to do that, and his sentence was adjourned to today, when he could arrange for his witness to come forward, a Mr Ejegi Godspower.

Now, Mr Ejegi’s evidence was really very limited. He says he remembers, back in 2011 on 14 December, that he was in a gathering of friends in Tsim Sha Tsui where everybody had drinks, and he said that a person called Junior was part of the group, and then apparently somebody had come along and said he had misplaced his travel documents, and Junior was going to go with that person to report to the police.

He said that most of the conversation was in a dialect, the Ibo dialect, which he did not understand, and at one stage, he said, before Junior left, he had spoken to the defendant, again in the dialect he did not understand, and then he did see Junior handing over an envelope to the defendant before leaving. And that was really the extent of his evidence. He said that maybe he had the intention of returning to get back that envelope, but nothing special happened, and when he left, Junior had not returned.

Under cross-examination, he gave a lot of evidence which was hearsay and which I am not prepared to give any weight to, about his conversation with Junior, and he said that the first time he had been asked, or knew about the fact that he may be asked to come to give evidence in court was probably some time last year, in Lai Chi Kok, when he met up with the defendant and they had talked.

He claimed that the event which he had witnessed back in 2011, the night when he said he saw Junior hand over the envelope to the defendant, was nothing out of the ordinary to him and he did not think that it was anything worth talking about, so he did not go to the police when he found out about the defendant’s arrest.

It was put to him that if it was such an insignificant event, how he would remember that particular event on that particular night, and he said he remembered it when he heard the defendant had been arrested, which was the day after the defendant’s arrest, and he claimed that he remembered at that time that he had seen the defendant the night before.

He then said in cross-examination that Junior had the intention of coming back for the envelope, whereas in-chief, he seemed to have said it was “maybe” Junior had the intention of coming back for the envelope. So that is the gist of his evidence.

The fact of the matter is that Mr Ejegi had been in custody and he had spoken to the defendant, and it is not exactly clear under what circumstances that conversation had emerged, and exactly what was said between the two of them. The fact that even if he did see the envelope being handed over to the defendant, I cannot be sure if that particular envelope was the one that the defendant claimed that he thought contained diamonds, he said, and not dangerous drugs. But whatever the case, the problem is this witness did not know what was said between Junior and the defendant so his evidence, I am not prepared to give much weight to.

The defendant then went on to mitigate on his own behalf, that he had siblings who had to drop out of school because of his incarceration for this case. His father is an old man and, in fact, everyone in his family depended on him back home. He says that his arrest had had a devastating effect on his wife. All this is actually part of the problem with all drug traffickers who indulge in this sort of trafficking and commit crime; it is the family that suffers. The defendant promises that he will remain good after his sentence. That is the gist of his mitigation.

The defendant has pleaded guilty to trafficking in 198.21 grammes of a solid containing a 196.75 grammes of methamphetamine hydrochloride. This mixture is of high purity. The facts were that in the early hours of the morning of 15 December, the defendant had been intercepted in Lai Chi Kok Road and Pei Ho Street, and upon a search of the defendant, he was carrying four packets of the drug hidden in the pockets of the jacket he was wearing and in his socks; a further packet containing 10 transparent resealable plastic bags was also found in the pocket of his jacket.

The Government Chemist had certified the content of those drugs and the average retail price of the drugs in Hong Kong is in the region of about $151,630.

The fact of the matter is that the defendant was not just carrying the packets of drugs but he had separated the packets and concealed them in various parts of his body, in the pockets of his jacket and also in his socks. And furthermore, he had with him a packet containing 10 transparent resealable plastic bags. This was in the pocket of his jacket.

If that was, in fact, what he said in mitigation, that it was merely somebody else who gave him a packet, why then it was necessary for him to separate all those drugs into various parts of his body and to be carrying around these transparent plastic bags?

So the fact is the facts do support the charge and the Court of Appeal has laid down guidelines for trafficking in methamphetamine hydrochloride. Initially, in the case of Ching Kwok Hung, it says that for trafficking in over 600 grammes of this 'Ice' would merit a sentence of 18 years’ imprisonment and up.

But recently, in the case of Abdallah [2009], the Court of Appeal had laid down guidelines for trafficking in substantial quantities of heroin and cocaine, and according to the case of Tam Yi Chun, CACC 524/2011, the Court of Appeal had said that sentencing guidelines laid down in Abdallah would equally apply to large quantities of methamphetamine hydrochloride.

So as far as the sentencing guidelines laid down in Abdullahis concerned, for trafficking in between 1,200 to 4,000 grammes of the drug, sentencing after trial is recommended in the region of 23 to 26 years. In this case, it is 196.75 grammes, so the fact of the matter is that the guidelines in Ching Kwok Hung would apply.

On a previous occasion when this matter had been dealt with, the defendant was sentenced to a starting point of 11 years’ imprisonment. That would be, with reference to the sentencing guidelines in Ching Kwok Hung, a reasonable sentence as a starting point.

In this case, the defendant had pleaded guilty to the charge and so he is entitled to one-third off the 11 years’ starting point. Of course, in the circumstances of how we came to arrive at this, it was not what I would call a clean plea, in that we had to go through a lot of time before we arrived at this stage, and so there is a discretion for me to not give the defendant the full one-third off for his plea. But taking into account the fact that he is now in person, and the fact that this is his first conviction in Hong Kong, what he has gone through as he has been through a trial already, so I will not, therefore, deny him of the full one-third off for his plea.

The defendant is therefore sentenced to 7 years and 4 months.