HKSAR v. EFOBI CENSOR JONNY

HCCC 475/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 475 OF 2016

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

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COURT: This is my sentence in this case.

The defendant pleaded guilty before a magistrate to one count of trafficking in dangerous drugs and was committed to the Court of First Instance to be dealt with.

I have already read out the particulars and the Summary of Facts. I shall not repeat them here again but I have included them in my reasons for sentence.

The defendant was convicted of one charge of breach of condition of stay in 1999 when he was given a 1-month sentence, suspended for two years. He was in breach of that suspended sentence when he committed the offences of breach of condition of stay and misleading a police officer by giving false information in August 2000. The suspended sentence was activated in full and he was sentenced to a total of 4 months’ imprisonment. That was some 16 years ago. I do not find his criminal record an aggravating factor.

In mitigation, I heard that the defendant is 48 and was born in Nigeria. He has two young children. He was previously employed in the motor industry, supporting his own family and the children of his cousin who has passed away. His wife has a small business selling children’s clothing. In the defendant’s motor trading business, he used to frequently visit Hong Kong to buy second-hand motor parts. His immigration records would show that there had been nine such visits in the past four years.

But in the last few years, a series of unfortunate events led to the commission of the present offence. The defendant was left in severe financial difficulties. His mother had fallen ill and needed money for treatment. A major customer had died without paying the defendant and an associates of his was robbed, losing US$4,000 belonging to the business. The defendant had to borrow from his local church but it was not enough.

So he approached a man who knew the defendant would come to Hong Kong frequently. The man also knew the defendant had financial troubles and offered US$7,000 for the defendant to carry some parcels to Hong Kong. The man would also pay for the trip. Under the financial pressure, the defendant agreed to this arrangement. He swallowed the pills knowing that they were drugs but did not what type and thinking that they might have been cannabis. The defendant is not yet paid because he was supposed to receive the money upon his return to Nigeria after a successful delivery.

It was also pointed out to me that, subsequent to his arrest, the defendant had done his best to assist the customs officer in relation to the information about the drug supplier in Nigeria. It did take some time for the information to filter through from Nigeria, but useful information was supplied.

Lastly, Mr Dunn pointed out that the defendant’s family will suffer a lot from the defendant’s incarceration, losing their main breadwinner. Knowing that, the defendant will be agonising over this fact while he is in gaol.

In relation to the international element involved in the case, Mr Dunn suggests that the proper amount of enhancement should be 1 year.

Sentencing guidelines

It was held in Attorney General v Pedro Nel Rojas that the tariffs for trafficking in heroin in Lau Tak Ming should apply to trafficking in cocaine. For a very large quantity of heroin, hence cocaine, the Court of Appeal laid down further guidelines in the case of Abdallah. For trafficking in a quantity of 600 to 1,200 grammes, the range of sentence is that of 20 to 23 years’ imprisonment. A strict mathematical approach of the said guidelines for 642 grammes of cocaine in our case would lead to a starting point of 246 months’ imprisonment. This is the starting point I adopt.

Aggravating factor

The defendant brought in the drugs from Nigeria. In the case of Abdallah, the abovementioned case, the Court of Appeal held that if there is an international element in the trafficking, there should be an enhancement of at least 2 years for drugs above 1,000 grammes. For drugs less than this amount, the enhancement is at the discretion of the court. The courts have applied this approach to drugs such as cocaine and ‘Ice’.

In the case of HKSAR v Chung Ping Kun, the Court of Appeal, after considering a number of cases where there had been such enhancements, laid down guidelines for the range of enhancements. For trafficking in dangerous drugs such as ‘Ice’, heroin and cocaine between 500 to 1,000 grammes, the enhancement should be 1 to 2 years.

Applying the guidelines, I will enhance the sentence by 15 months leading to the enhanced sentence of 261 months’ imprisonment.

Mitigation Factors

I find that the fact that the defendant had been actively trying to assist customs officers in providing information of the supplier of the drugs in Nigeria as well as contact number is a mitigating factor and the defendant should be given credit for it. For this mitigating factor, I will reduce the sentence by 6 months, leading to a sentence of 255 months.

The other mitigating factor is of course the defendant’s timely guilty plea. For that, he is granted the full one-third discount on the 255 months’ sentence.

The final sentence is therefore 170 months, or 14 years and 2 months’ imprisonment.