HKSAR v. MATHEWS ROGERS RAPHAEL

HCCC 267/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 267 OF 2015

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

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

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

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

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

COURT: The defendant, Mathews Rogers Raphael, a Tanzanian passport holder, was charged with one count of trafficking in a dangerous drug. He pleaded guilty before a magistrate and was committed to be sentenced in the Court of First Instance of the High Court.

The facts admitted by the defendant disclosed that he arrived at Hong Kong International Airport on 13 January 2015, on a flight from Dar Es Salaam via Addis Ababa. He was intercepted by Customs officers at the Arrival Hall. As internal concealment was suspected, the defendant was sent to a hospital. At the hospital, an examination showed that he had foreign objects in his body. The defendant was arrested for trafficking in a dangerous drug and he was cautioned.

Under caution, the defendant admitted there were dangerous drugs inside his body and that he had swallowed the dangerous drugs while he was in Tanzania. The reward for bringing the dangerous drugs to Hong Kong was US$3,500.

The defendant later discharged a total of 80 pellets which were later confirmed to contain a total of 785 grammes of a powder containing 441 grammes of heroin hydrochloride and 96.8 grammes of 6-monoacetylmorphine hydrochloride.

During a video-recorded interview conducted later, the defendant admitted that he was given the dangerous drugs by a male before his departure from Dar Es Salaam, and he was promised US$3,500 for the delivery. He did not know the type of dangerous drug. He understood someone would go and collect the dangerous drug from him after his arrival in Hong Kong.

The dangerous drugs in question had an estimated retail value of HK$589,535 in January 2015.

The background

The defendant is a 41-year-old male, born in Dar Es Salaam, Tanzania. He is married and has three children aged 11, 8, and 2 respectively. The defendant’s parents have passed away and he is the sole supporter of his own family and four siblings. The defendant does not have any prior criminal conviction. He claimed to obtain an education level of advanced diploma and ran a business in selling clothes, mobile phones, DVDs, and radio spare parts. He has come to Hong Kong before and bought old mobile phones and strap metal at the Kam Tin area to bring back home to sell.

Mr Marray, mitigating on behalf of the defendant, informed me that the defendant committed the present offence due to the need to raise medical fees. The defendant himself had written me a letter expressing his great remorse. He promised never to commit such a serious offence again and asked for a lenient sentence so that he can go back and care for his family.

Mr Marray also tendered the medical report on the defendant showing the defendant’s medical condition. I will not state here what his medical condition is. Mr Marray confirms that he is not seeking any reduction of sentence on account of the defendant’s medical condition. The report was merely for me to know more about the defendant’s condition.

Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to be fined $5 million and to imprisonment for life. The Court of Appeal in the case of Lau Tak Ming set down guidelines for sentencing traffickers trafficking heroin hydrochloride. The defendant trafficked a total of 441 grammes of heroin hydrochloride and 96.80 grammes of 6‑monoacetylmorphine hydrochloride. There is no dispute that 6-monoacetylmorphine hydrochloride has the same potency as heroin hydrochloride: see the cases of HKSAR v Daresa Mariam Guma CACC 155/2012; and HKSAR v Kharim Mohamed Omari HCCC 265/2011.

The total quantity of narcotics is therefore 537.8 grammes. For an amount between 400 to 600 grammes, the appropriate starting point is between 15 to 20 years. I am of the view that in all the circumstances of this case, a starting point of 18 years is appropriate.

In a case of HKSAR v Abdallah, the Court of Appeal held that if there is an international element in the trafficking there should be an enhancement of at least two years for drugs above 1,000 grammes. For drugs below 1,000 grammes, the extent of enhancement is at the discretion of the sentencing judge.

In HKSAR v Chung Ping Kun, the Court of Appeal suggested that following broad guidelines in enhancement:

- up to 250 grammes, 6 months;

- between 250 and 500 grammes, 6 months’ to a year;

- between 500 and 1,000 grammes, one year to two years.

Having considered the total amount of narcotics here, that is 537.8 grammes, I am of the view that an appropriate enhancement is one year.

Using a starting point of 18 years and with an enhancement of one year for the international element, the appropriate sentence after trial is one of 19 years.

Normally, a defendant who had tendered a timely plea will be given a one-third discount. However, due to the special circumstances of the case, I am not giving the defendant the full one-third discount, but will give him a 25 per cent discount.

There are no other grounds to further reduce the sentence. A prisoner’s medical condition was not a matter to which the court could have regard for mitigation of a proper sentence, although it might well be a matter for the Executive if brought to their attention and deserving of consideration: that is the case of R v Ho Mei Lin.

For the actual sentence, the defendant is sentenced to term of imprisonment of 14 years and 3 months.