HKSAR v. NDUNGU RAHAB WANJIRU

HCCC 351/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 351 OF 2015

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

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COURT: This matter was initially listed for pre-trial review on 21 December of last year. It was due to be listed for trial yesterday and it was fixed for seven days. But on 18 December, the defence counsel you had at the time, Mr Arthur, wrote to the court and informed the court and the prosecution that you had decided that you would plead guilty to the one count that you faced of trafficking in 700 grammes of heroin hydrochloride.

On 21 December at the pre-trial review, you were not in a position to enter your plea and so the court directed that there would be a short adjournment, and we just had a couple of days, if you remember, to 23 December. Only on that occasion, for reasons the court cannot understand, the prosecution were not in possession of a summary of facts, even though you had indicated your plea on 18 December and appeared on 21 December and the fact that the evidence could not have been, either for you or for the prosecution, any more straightforward in this case. As a result, we had to adjourn again so that the summary of facts could be served. In fact, it was served later on the same day, but we adjourned to 5 January which should have been a date upon which you could enter your plea, finally, so that the trial date, could be vacated and costs would have been saved.

Unfortunately, defence counsel did not respond to the prosecution until 4 January. So the prosecution did not receive them until the morning of 5 January, and at that point Mr Arthur asked for another adjournment no doubt because of the instructions he received from you in respect of the money, the US$2,950 you had on you at the time.

Not surprisingly the court was not very impressed with that application and I gave counsel some time to try and refine the issues between them, and as a result of that conversation between very experienced criminal counsel, Mr Laskey indicated to the court that the issue was the forfeiture of the $2,950.

At that time there was considerable discussion - which you would have understood because your English is very good - between counsel about how that was going to be dealt with, and it was suggested to the court that there should be a Newton hearing. You would not understand that phrase but, basically, it means that there would be evidence about the issue with the forfeiture.

I was not very happy with that, if you remember, at the time because it did not sound as if the forfeiture should be dealt with in sentencing. But, nevertheless, we adjourned for that to happen to yesterday, to 4 February, because counsel submitted that that was the way forward.

We adjourned for it to be listed for a day’s hearing because the Customs and Excise officer would have to come to court and no doubt Mr Arthur then, on your behalf, was going to say “You have made it all up, everything you have written down you have made up”, because we know now that that is your case, which is that you never made the admissions that you made at the time.

So, we came to 4 February, still without dates vacated because you had not entered your plea. And yesterday, what happens? Mr Arthur stands up and says:

“I have to withdraw, my Lady. I have ethical problems with my client. She has lost faith in her representation and I cannot represent her today.”

Because this case is so very serious, Miss Ndungu, I could not possibly have continued to sentence without you being represented by an experienced counsel. But I explained that to you, did I not, yesterday? I explained to you yesterday, as I did in January, that if matters keep moving on and court time is taken up, you were at risk of losing your one-third discount for entering a plea of guilty.

But, nevertheless, luckily, the Director of Legal Aid managed to arrange for counsel yesterday and I asked that you remained in custody in the court building so that Miss Chong could come and see you. She saw you, she said, for an hour-and-a-half yesterday. So you could rehearse, what you had already told over at least a month, to both Mr Swainston and Miss Chong. There would not be anything new, would there, because you would just be telling them what you had already told them before.

But what should have been a simple sentence this morning, there was a problem again. Because you decided to instruct your counsel to ask for an adjournment because you said you had psychological problems which, after some discussion, amounted to depression.

Then, there came a suggestion about assistance you were giving to Customs & Excise and that you did not want to be sentenced because you wanted that to be resolved so that you can take credit for that assistance. It was explained to you, was it not, that you could not have the benefit of that until there was some value to it and you could go to the Court of Appeal.

I am going to give you the benefit of the doubt on the discount because you may not understand the Hong Kong system. But you are very lucky to get that benefit of the doubt, because I am not altogether convinced that a lot of this was not you clown to you. You put counsel in a very difficult position - two experienced counsel in a very difficult position.

Now I have listened to what Miss Chong had said. I have a great deal of sympathy for your personal circumstances. It must have been a difficult upbringing. It must have been very difficult for you to raise not only your own daughter but that of your nephew, and it is good to see that you were doing charitable work.

It is, therefore, all the more astounding that you put yourself in a position where you were trafficking in dangerous drugs. I note that Miss Chong could not really say a great deal about that. We get up to the point at which you meet the person you called “Tony”, and then very little else, other than the fact that you are naïve and unsophisticated. But even the most naïve and unsophisticated person knows that when they ingest, eat, condoms full of heroin and have them placed in their vagina that they are clearly doing something very dangerous indeed, do they not? You, all the more so, because you have two children to look after. So, you knew the risk you were taking and you went ahead and did it.

None of the personal mitigation can help you today because it is such a serious matter.

For trafficking in dangerous drugs in 700 grammes of heroin hydrochloride, I take a starting point, if it had been a trial, a starting point of 20 years and 6 months’ imprisonment, and that is following the guidelines, we have a case called HKSAR v Abdallah [2009] 2 HKLRD 347.

I am required, Miss Ndungu, to enhance, to add to that sentence, because you brought those drugs into Hong Kong. But not only did you bring the drugs into Hong Kong you were taking them out again because you were going to go to China with them. So there is an international element, and for that international element I am going to add one year. So the starting point for sentence is 21 years and 6 months.

But, as I said earlier, I am going to give you the benefit of the doubt as to the discount, and so I will give you that benefit and you will have a full one-third discount after your plea of guilty and, therefore, you will go to prison for 14 years and 4 months.