HKSAR v. IWEGBUNA GODWIN ONOCHIE

HCCC 102/2019

[2021] HKCFI 2831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 102 OF 2019

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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 and the reasons for it. On 26 April 2018, in the vicinity of Wai Yip Street Kowloon Bay during the course of an investigation by Customs and Excise officers into a separate case of attempted trafficking of dangerous drugs, the defendant was arrested in the vicinity of Wai Yip Street in respect of the present charges.

These charges arise from, firstly, a search of the defendant’s clothing after his arrest in which a packet of tissue paper containing a transparent zip lock bag containing 0.37 grammes of herbal cannabis was found in his jeans pocket. He was arrested and cautioned and said in English at that time that the cannabis was for his self-consumption. He was then escorted back to his declared address in Kam Tin, Yuen Long, New Territories, for a search.

The officers gained access to the premises by using his keys. Upon a search of the premises, two further transparent plastic bags containing 0.93 grammes of herbal cannabis were found inside a wooden cabinet. He was arrested and cautioned and said in English that that cannabis also was for his self-consumption. The total amount of cannabis therefore the subject of the two charges is approximately 1.3 grammes.

The defendant was eventually charged with another person in respect of the separate attempted trafficking case involving a large quantity of cocaine, and with the possession of the herbal cannabis found on his person being Charge 1 in the present proceedings, and in his premises being Charge 2, is brought before this court. On these facts, I would have imposed fines upon the defendant in respect of the two present charges totalling $1,000 and ordered a period of 7 days’ imprisonment in default of payment.

The defendant, however, was arrested and charged in respect of the attempted trafficking of a quantity of cocaine which had brought about his arrest. He subsequently went to trial in respect of that alleged offence before a jury but was unanimously acquitted along with his co-accused. While awaiting trial in that case, he had spent 19 months in detention.

In my view, that is sufficient reason, in all the circumstances of the case, to impose a sentence which, with good behaviour by the defendant, avoids any further period of detention, but I would comment that the options available to me in achieving that goal are extremely limited. I cannot give the defendant a conditional discharge. That is available only on the basis of a conviction on indictment and in this case the defendant has been committed to this court for sentence and, therefore, does not appear before the court on an indictment. There is no provision which allows me to impose a fine but then suspend it on condition of the defendant’s good behaviour. I would rather not allow the defendant a complete discharge. I think it important in his case that some motivation to not offend again be put in place and there is a degree of moral culpability to his behaviour from which the community has a legitimate interest in a sentence of some degree of deterrence.

Accordingly, even taking into account his prior conviction for a similar offence involving cannabis, I impose a fine of $500 in respect of the 1^st charged offence and of $500 for the 2^nd charged offence. That is a total of $1,000. Upon any failure to pay any part of that $1,000 totality of fine in respect of each offence, I order that he serve 7 days’ imprisonment in lieu thereof.

I have said I would have imposed fines upon the defendant but the reality is that I should have said I would not have imposed fines upon the defendant in respect of the two present charges, but I have got no choice, really. It is the only penalty I can impose that does not have at least some element of a risk of further imprisonment.

Now, how long do you want to pay, did you say?

MR CHAU: Four weeks, please.

COURT: Four weeks?

MR CHAU: Yes, please.

COURT: All right. Have you checked that with your...

MR CHAU: Yes, we have checked.

COURT: Yes, all right. I will give the defendant 4 weeks to pay. All right. Will you be able to do that, pay your fine in 4 weeks?

ACCUSED: Yes, my Lord.

COURT: Yes, all right. I would not impose 7 days’ imprisonment in lieu thereof in failure to pay any part of that $1,000 totality of fine, but it has to be done. You cannot impose a fine, as I understand it, without imposing a default provision.