OKORIE Remigius Chika Nwafor v. R.

IN THE COURT OF APPEAL

1993, No.89
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.:(giving the judgment of the Court):

1. On 23rd February 1993, following a plea of guilty on an earlier date to trafficking in 1,506.69 grammes of a mixture containing 1,368.76 grammes of salts of esters of morphine, this applicant, aged 30 years, was sentenced by Deputy Judge J. Chan, as he then was, to 14 years' imprisonment. The leave of this Court is now sought to appeal against the sentence imposed.

2. The facts could not have been more straightforward. The applicant was a transit passenger in Hong Kong when a Customs Officer noticed false entries in his passport. It was then discovered that his baggage was fitted with two secret compartments, in each of which a wrapped slab of heroin had been hidden.

3. In mitigation it was said that the applicant was a courier who was taking the drugs from Thailand, via Hong Kong and Amsterdam, back to his native Nigeria. Once there, he hoped to be paid enough money to finance a surgical operation that he needed.

4. There are essentially three main grounds on which the applicant seeks leave to appeal. Firstly, that as a first offender, insufficient attention was paid by the learned judge to his previous good character; secondly, that as a foreign national, insufficient consideration was given to the effect of having to serve his sentence so far from his homeland and his family; and thirdly, that in all the circumstances the sentence was too severe. Today, he couples to those grounds a plea to this court for mercy.

5. In Hong Kong the tariffs for trafficking in heroin are well-established. R. v. Lau Tak-ming and others [1990] 2 HKLR 379 lays down the clearest possible guidelines for judges to follow when passing sentence in cases of this type. At p.387, a sentence of 15-20 years' imprisonment is the sentence which is suggested for amounts of between 400-600 grammes, representing well under half the amount being trafficked by this applicant. In arriving at those figures, the Court of Appeal made it clear that it was dealing with an international trade in drugs which needs to be actively discouraged.

The judge in the matter presently before us stated that he would make his starting point 20 years having regard, amongst other aspects of mitigation, to the distance between the applicant and his family and that a plea at the earliest opportunity demonstrated at least a degree of remorse.

The judge specifically expressed himself as unimpressed with what had been said in the course of mitigation to the effect that, as the applicant was only a transit passenger and the drugs were not destined for distribution in Hong Kong, the sentence should be further reduced. This Court in the Attorney General v. Pedro Nel Roias (Application for Review No. 15 of 1993) in which judgment was given as recently as 16th June 1994, held that such a consideration was irrelevant. In that same judgment, Silke V.-P., in dealing with the position of a foreign national imprisoned in Hong Kong, cited with approval a passage from R. v. Garry La Verne Ohmert Criminal Appeal No. 213 of 1985 in which it was stated that:

'While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case, that in general is not a circumstance which the Court will take into account in mitigation to any substantial degree.'

6. For all the reasons already set out, this applicant can regard himself as fortunate that the judge took 20 years as his starting point. It could well have been higher. In our judgment, no valid criticism can be made of the sentence imposed.

7. This application has no merit and is accordingly refused.