HKSAR v. MADUEKWE AKACHUKWU BELLAMINE alias TUNKARA OMAR AND ANOTHER

HCCC 457/2015 & 59/2016
(Consolidated)

[2018] HKCFI 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 457 OF 2015 and 59 OF 2016

-----------------

------------------

-----------------------------------------------

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

-----------------------------------------------

COURT:

D1 was arrested with D2 for trafficking in dangerous drugs on 23 April 2015. D1 was seen by police officer in anti-drug surveillance operation to hand a plastic bag that he was carrying over to D2. They were intercepted and the plastic bag was found to contain 74 plastic wrapped pellets containing 1.3 kilogrammes of a mixture containing a total of 549 grammes of cocaine.

Both defendants maintain not guilty plea during pre-trial review on 7 June 2016. Trial was set down to be from 2 to 15 August 2016. But before then, the then counsel of D1 wrote in to inform the court that D1 would plead guilty on the first day of trial. Those acting for D2 did the likewise.

One day before scheduled trial date, D1’s counsel wrote in to inform the court that D1 had instructed that he wished to provide information to assist the prosecution and such might be relied on in mitigation by D1.

On 3 August 2016, D1 and D2 pleaded guilty and admitted to a Summary of Facts which support the charge. They were convicted accordingly. The court was informed that more time was required for the police to obtain statement from D1. Mitigation was then reserved to 8 August and then 3 October. When nothing came out of the non-prejudicial statement, D1 sought to apply for reversal of his plea causing his counsel to be discharged and Mr McGowan took over to represent him on 14 October 2016. Further adjournments were obtained.

On 25 October, D2 through his counsel indicated in court that he would be willing to testify against D1, should D1’s application for reversal of plea succeed.

After three judges who handled this case. This case eventually came before me on 15 December 2017 for hearing of the reversal of plea application by D1. However, the court was then informed that D1 would not pursue such an application but would raise entrapment as mitigation.

Today, it was advanced on D1’s behalf that he was enticed into committing an offence which he otherwise would not have by a person whom he knew as Frank, a reputed police informant who has groomed him by feeding him and paying for his accommodation and who on the day in question promised him a reward of HK$500 to deliver the bag to Pakistani male, ie, D2 which he did. D1 was told to go to a certain exit at a MTR station. It was submitted by Mr McGowan that there is a real likelihood or possibility that this was a trap set by Frank.

The prosecution however denies that this was an arrest based on information provided by any particular informer but rather on general internal police intelligence instead.

Mr McGowan submitted that the facts show, especially according to the police statements, that the police had relevant intelligence that there would be trafficking activities at the material time at that place and that together with the fact that no one else had been arrested, all point towards a real possibility of an entrapment. Mr McGowan further submitted that by virtue of D1’s assistance to Father Wotherspoon’s anti-drug campaign, he urges this court to give D1 a further discount.

The authorities on entrapment as mitigation is clear. The court has to be satisfied that there was a real possibility or likelihood that D1 was encouraged or enticed to commit an offence which he would not otherwise have committed. What Mr McGowan focused on is that D1 would not have gone to deliver the bag had he not been asked. However, the crux of the matter really is would he have committed an offence which he would not otherwise had and the offence here is the delivering of the drugs knowingly.

Keith J in HKSAR v Cheung Yun Kei CACC 292/2000, at paragraph 37 said this:

“If the defendant’s participation in the offence has been instigated or encouraged by a police informer in circumstances amounting to entrapment, the entrapment will amount to a mitigating factor.”

According to D1’s own non-prejudicial statement, he was aware right at the very beginning what he was asked to deliver was dangerous drugs although he was not aware of the precise type. It is clear that he was a knowing party to this. Whilst it may be argued that the contents of the non-prejudicial statement should not be used against him, however, by pleading guilty, it would necessarily mean that D1 was aware of the contents to be dangerous drugs but nonetheless went ahead to willingly deliver them. The position was akin to the case of Agara Isaiah Bishop CACC 76/2015. There the appellant failed to reverse his plea but maintained that he only thought the drugs were cut gemstones. The Court of Appeal said at paragraph 70:

“We would say that we find it difficult to see how the applicant could establish a case of entrapment in the circumstances he relied on. Once the denial of knowledge is put to one side then the applicant is in knowing possession of dangerous drugs given to him by another for the purpose of him keeping safe custody of them until such time as he was required to return the drugs to that other person.”

In my view, D1 failed to prove there was any real possibility or likelihood that there was entrapment as such.

The present case involves 549 grammes of cocaine. According to the tariff, trafficking between 400 and 600 grammes attracts a starting point of 15 to 20 years’ imprisonment. I adopt a starting point of 18 years’ imprisonment in the present case.

For D2 who maintained his guilty plea all along and his indication of willingness to testify against D1 should his reversal of plea succeed, I am prepared to give him a discount further than 30 per cent. He is sentenced to 11 years’ imprisonment which means around 38 per cent discount.

For his breach of the two months’ suspended sentence imposed on him on 10 June 2014, I activate that and order the two months to run consecutively.

D1’s counsel conceded in his written submission that D1’s behaviour, at least for the period after he entered his guilty plea on 3 August 2016, could not be considered as rational or normal. Counsel attributed such to D1’s psychiatric condition and submitted that the court should not punish a person under a disability by depriving him of the 30 per cent discount. D1 has the benefit of legal representation throughout. I have not a thread of doubt that he was able to comprehend what was going on. His giving of a statement to assist the police clearly demonstrated that not only could he understand what was going on, he took a deliberate action hoping to get some favourable consequence. Failing which when he was informed that such information was of no use then he made a conscious attempt to retract from his guilty plea. He knows full well what was going on and made deliberate and informed decision of his own free will.

This case has been dragged on unnecessarily. Of course the defendant is entitled to deploy various legitimate means to earn him discount further than a discount out of a plea. But he also runs the risk that if those fail, there is a risk that only would he not get the extra discount; he would lose the original discount which he was entitled on a plea. He has to bear the consequence of engaging in a tactic which had backfired on him. Also in my view, the sort of assistance if any that D1 had given to Father Wotherspoon does not earn him any discount and even if it does, it would have been set off by the backfire. I am only minded to give him a 20 per cent discount.

He is sentenced to 14 years and 5 months’ imprisonment.