HKSAR v. CRISPO VIDA MIJIDE

HCCC 290/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 290 OF 2015

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 29 January 2015, at the Customs arrival hall, Shenzhen Bay Control Point, in the New Territories, you unlawfully trafficked in 2.98 kilogrammes of a crystalline solid containing 2.93 kilogrammes of methamphetamine hydrochloride.

On that day in question, you were intercepted by a Customs officer and your suitcase was X-rayed. Upon X-ray scanning, the images of two backpacks contained in your suitcase showed suspicious images. One of the backpack’s inner lining was then cut open and inside the lining, the drugs which we now know as ‘Ice’ was found inside. The other backpack was examined and further ‘Ice’ was also found and concealed in the same manner as the first backpack.

Under cautioned you claimed the backpacks belonged to Mary and that you would deliver the backpacks to Chungking Mansions and Mary would call you. You said you did not receive any reward. At that time, you were found to have two phones in your handbag and cash of US$550 and renminbi 238.80.

Having been arrested by the Customs officers, you agreed to participate in a controlled delivery. You had received phone calls on your mobile phone from an unknown person and upon direction from the Customs and Excise, a meeting was arranged to meet this unknown person in a fast food restaurant near Chungking Mansions. But that time, nobody showed up, and the operation was fruitless.

The estimated retail value of the drugs you were trafficking in at the time of seizure was HK$1,266,500.

In a subsequent video-recorded interview, you claimed that it was your friend Caro whom you had met just two weeks before you came to Hong Kong, who asked you to bring the suitcase to her sister, Mary, at Chungking Mansion and that Caro gave you the suitcase 15 minutes before you departed Guangzhou for Hong Kong.

Madam, your counsel, Mr John Hemmings, has mitigated on your behalf. He acknowledges that for trafficking in the drugs ‘Ice’, there are clear guidelines and tariffs laid down by the Court of Appeal. You are 33 years of age and are a Kenyan national. You have a clear record here in Hong Kong. You are single with a son aged 5, living in Guangzhou. You had apparently been studying for a masters degree in finance in Qingdao, China. You are not a drug addict.

Mr Hemmings has clarified to this court that on the day of the attempted controlled delivery, you did have telephone contact with a person who was supposed to collect the backpacks. You went to Café de Coral in Tsim Sha Tsui to meet that person, however, that person wanted you to go to McDonald’s. However, this request was declined by the Customs and Excise as there were security concerns and for that reason, the controlled delivery failed.

I too have read the Customs officer’s detailed statement as to what happened during the time that you attempted to make a controlled delivery. I am told by Mr Hemmings that since your arrest, you have tried to assist the authorities by giving assistance, but until now, this has not proved to be positive assistance.

I have also received a letter from Father John Wotherspoon dated 27 July 2016, informing me that you have actively supported his campaign to stop drug traffickers coming to Hong Kong. In that letter, he asked this court to give a reduction of sentence in view of your assistance to his campaign.

Mr Hemmings has conceded, quite fairly and correctly, that this is not a matter for me to deal with at this stage, in whether to give you a reduction, as there is clearly a Court of Appeal authority on this matter. I have stated my concern in other cases that this was not a matter to which I could have given a reduction of sentence.

I now have before me a Court of Appeal decision, CACC 324/2015, the date of judgment being 5 May 2016, whereby the Court of Appeal there fully considered the defendant’s contribution after their sentence to Father Wotherspoon’s campaign. In short, the Court of Appeal stated at paragraph 36:

“The form of assistance rendered by this applicant does not require the intervention of this court at this stage. The assessment of the value of the applicant’s assistance is something which can be better made by the Executive and there is still ample time before the applicant’s release for such an assessment to be made.”

I have to say that Father Wotherspoon has only very recently, say within the last month, submitted to me these letters and asked me for a reduction of sentence for these applicants, and I am somewhat surprised that this was done despite the Court of Appeal having given judgment now some two or three months ago, that such discounts would not be warranted at this stage.

Turning then to this sentence. Defendant, the amount of drugs that you were trafficking in was 2,930 grammes of ‘Ice’. The authority now, after Tam Yi Chun, is that as laid down in HKSAR v Abdallah Anwar Abbas. The bracket which the quantity of drugs fall in is between 1,200 to 4,000 grammes which would attract a sentence of between 23 to 26 years’ imprisonment after trial. Given the amount of drugs that you were trafficking in, had you been convicted after trial, I would have taken a sentence of 24 years and 9 months’ imprisonment.

There is an aggravating factor calling for the enhancement of the starting point as there is an international element involved, being that you had brought these drugs from China into Hong Kong. Given the quantity of the drugs involved, that starting point shall be enhanced by 2 years’ imprisonment, making the sentencing point 26 years and 9 months’ imprisonment.

Madam, in respect of the failed controlled delivery, I accept that you had taken part and attempted to assist the Customs and Excise in making a controlled delivery. It was through no fault of your own that the controlled delivery failed. It appears that the failure was as a result of security concerns.

In following the case of CACC 278/2011, HKSAR v Jardin Rodela Maningas, where the applicant there also had failed in her controlled delivery, The court still granted her credit for her preparedness to assist in securing the apprehension of the person in Hong Kong to whom the drugs were to be delivered.

In this case, Madam, I am satisfied that you had assisted, or attempted to assist, the Customs and Excise and took part in that action by going to Café Coral and receiving the phone call, but it had failed because of security concerns. For that reason, your assistance in fact provided came to no fruition. Nevertheless, I am prepared to give you credit for your assistance.

In those circumstances, having taken into account your plea of guilty and your assistance to the authorities on the day of the controlled delivery, I discount your sentence by 40 per cent from the 26 years and 9 months’ imprisonment, that is giving you the full one-third credit discount and the balance for your assistance, you shall therefore be sentenced to a total term of 16 years’ imprisonment.