COURT: The defendant, Muli Caroline Anyango Ojaro was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Summary of Facts
The defendant is a Kenyan. On 18 April 2016, she arrived at Hong Kong International Airport from Nairobi via Dubai. She was intercepted by a customs officer and upon search of her hand luggage, a wine box containing 75 pellets was found.
The substance was later confirmed to be a total of 1.16 kilogrammes of a solid containing 831 grammes of cocaine with a street value $1,211,040.
Under arrest, the defendant claimed she did not know what was inside the wine box. The defendant disclosed to the customs officers that her friend in Dubai would arrange for her to meet a man to pick up the wine in Hong Kong. A controlled delivery was arranged and the defendant took part. She was instructed to go to the Chungking Mansion but no one showed up to approach her. So the operation was unfruitful.
At a video-recorded interview, the defendant said, among other things, that she ran a clothes shop in Kenya. Her business was not good and she was in debt. Her old friend arranged for her to go to Dubai, where they met up, and that friend gave her a wine box to bring to Hong Kong. She claimed she did not check what was inside the wine box but she thought the weight of the wine was normal. Despite her denial under arrest and during the video-recorded interview, the defendant admitted that she trafficked in the cocaine in question at the material time.
Background and mitigation
The defendant is 27 years old and is single. She has a son who is 14 and a baby daughter who is 1. The defendant claimed to be in the business selling clothes, earning 15,000 to 20,000 Kenyan shillings per month. She has a clear record in Hong Kong.
Mr Edward Laskey, counsel for the defendant, referred to the controlled delivery and asked this court to give the defendant credit. Mr Laskey also informed this court that the defendant had taken part in Father John Wotherspoon’s campaign in trying to stop traffickers bringing drugs to Hong Kong. Having regard to what the Court of Appeal has said in the case of HKSAR v Odira Sharon Lensa, CACC 56/2016, at paragraph 50, I decided to hold an inquiry to determine this issue.
For the inquiry, I was provided with a letter from Father Wotherspoon with enclosures which included printouts on Father Wotherspoon’s website called ‘The Story of Sharon’ and ‘the Story of Esther’ and also a letter from the defendant’s sister-in-law. I also heard evidence from the defendant and Father Wotherspoon.
In a nutshell, the defendant told me that she herself was recruited by the woman called Sharon to be engaged in this drug deal. She was trusted by Sharon. Together with her, a total of 10 women were recruited by this Sharon and the defendant was entrusted with money given by Sharon to get the necessary passports for everyone. Sharon also told them that they would be bringing drugs and she was the first one to come, in her words, “to see how it goes”.
After she was arrested, she told Father Wotherspoon about Sharon and also gave information of Sharon to the Customs and Excise Department. She maintained monthly contact with her family and she later learned that one of the women, one who was related to her, was sent to Malaysia and is now on the death row after being caught with drugs. She gave this court the names of the other eight women in the group. According to the defendant, she had told Father Wotherspoon everything. However, Father Wotherspoon told this court that the defendant only told him about Sharon and about the relative on death row in Malaysia. He did not ask the defendant for the names of the other women.
It is noted that the defendant’s sister-in-law, in her affidavit, stated that it was her “personal knowledge” that the defendant had helped prevent 10 women from bringing drugs to Hong Kong when the defendant herself told me that she was one of the 10. Father Wotherspoon also referred to the defendant helping to stop 10 more drug mules from coming to Hong Kong. Father Wotherspoon explained to this court that, like the Chinese in referring to siblings, the number included the person who made the statement himself or herself. He understood the defendant to have referred to 10 other persons when the defendant had included herself as one of the 10. He was of the view that the defendant’s sister-in-law used the reference of 10 as a result of what he had said.
From the two printouts provided for me, one can see that Father Wotherspoon had related the roles played by Sharon and another female called Esther in recruiting people from Kenya, to warn people not to bring dangerous drug into Hong Kong.
The prosecution produced statistics to show the number of arrests made at the Hong Kong International Airport between January 2010 and March 2017, showing both the number of Kenyan and the number of traffickers of all nationalities caught during this period.
There is no dispute that the two non-prejudicial statements given by the defendant in relation to Sharon to the Customs and Excise Department turned out to be unfruitful.
I do not find the statistics provided by the prosecution assist me in any way in this matter as no pattern can be discerned from the number of Kenyan traffickers over the years. I have no doubt that Father Wotherspoon deeply believed that the defendant’s information about Sharon had assisted to stop others, in particular those in the defendant’s group of women, from coming to Hong Kong. However, on the evidence before me, even on the lower standard of balance of probabilities, I am not prepared to accept that the information given by the defendant about Sharon had assisted in stopping any woman from the group of 10 from coming to Hong Kong.
The defendant testified before me that she was to be the first one to come to Hong Kong “to see how it goes.” After she was arrested, one of the 10, according to information she received, was sent to Malaysia instead. There is no cogent evidence before me that it was due to the information the defendant had given about Sharon that had stopped the remaining eight from coming to Hong Kong. Upon knowing what had happened to the defendant, naturally, the others would not want to come to Hong Kong.
As for the affidavit of the defendant’s sister-in-law, if she had indeed “personal knowledge” about the women the defendant successfully stopped from bringing drugs to Hong Kong, she would have realised that the number could not have been 10 as the defendant, as one of the 10, had already been arrested. I place no reliance on the said affidavit.
Consequently, I do not accept that the defendant had assisted in stopping other women from bringing dangerous drug to Hong Kong by giving information on Sharon.
I am prepared, in order to give encouragement to this defendant and to other defendants in similar situation, to regard her willingness to contribute to the campaign and her effort in providing information about her recruiter to warn and discourage others who traffic dangerous drug as a useful and constructive contribution to the Hong Kong society and be treated on a par as a positive good character for the purpose of sentence.
The controlled delivery
The defendant took part in a controlled delivery which turned out to be fruitless. Having considered the circumstances of the controlled delivery, I am satisfied that the defendant had done all that she could to assist. Bearing in mind that it is important to encourage arrested persons to render such assistance, a further discount is warranted (see HKSAR v Gopal Muthusamy, CACC 238/2010 (unreported) and HKSAR v Jardin Rodela Maningas, CACC 278/2011 (unreported)).
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. The total quantity involved here is 831 grammes. According to the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking between 600 grammes and 1,200 grammes of cocaine, the appropriate starting point is between 20 to 23 years.
Having considered the circumstances of this case, I am of the view that a starting point of 21 years is appropriate.
It is clear from the evidence that there was an international operation to bring the dangerous drug into Hong Kong, so there should be an enhancement.
In HKSAR v Chung Ping Kun, CACC 85/2014 (unreported), the Court of Appeal suggested the following broad guidelines of enhancement: up to 250 grammes, 6 months; between 250 and 500 grammes, 6 months to a year; between 500 to 1,000 grammes, 1 year to 2 years.
I am of the view that there should be enhancement of 18 months. The enhanced starting point is therefore 22½ years.
The defendant has tendered a timely plea and I will give her a full one-third discount. After the discount, the sentence is one of 15 years.
As I have mentioned, credit should be given to the defendant for her co-operation in participating in the controlled delivery and I will give her a further discount of 18 months. No discount will be given for the information the defendant had given to the Customs and Excise Department but I will give her a further discount of 6 months to represent the positive good character I have already mentioned. I will therefore give a total further discount of 2 years.
So for the said offence of trafficking in a dangerous drug, the defendant is sentenced to 13 years’ imprisonment.