HKSAR v. OMOGO STEPHEN OKUTA

HCCC 323/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 323 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The defendant pleaded guilty at committal on 31 July 2015 to one count of trafficking in dangerous drugs, namely 1.2 kilogrammes of solid containing 626 grammes of cocaine.

The facts which the defendant admitted at committal were confirmed before me today, as was the plea. Those facts show that the defendant was intercepted before Customs clearance at the airport, and was sent to North Lantau Hospital, where an X-ray confirmed the presence of objects in his body. He was cautioned and asked what the objects were. The defendant said he had swallowed 72 pills, and after he discharged all the pills, someone will pay him US$3,000.

The defendant was transferred to Queen Elizabeth Hospital, where he subsequently discharged 71 pellets of suspected DD, which on analysis by the Government Chemist, was found to be a total of 1.2 kilogrammes of a solid containing 626 grammes of cocaine. The cocaine had an estimated retail value of HK$1,107,680.

The defendant refused to answer any questions during the subsequent interview. He now admits and accepts that he was trafficking at the material time.

He had arrived in Hong Kong on 8 February 2015 from Addis Ababa, and was scheduled to depart Hong Kong for Addis Ababa on 2 March 2015.

He has no criminal record in Hong Kong, and I am advised he has a clear record in his home country, which is Kenya. The antecedent statement stated that the defendant was aged 52, of Kenyan nationality. He told police he is a businessman, he was educated to high school level. He was married, with four children, aged 23, 21, 19 and 16.

In mitigation, I was given further details about the family situation. The defendant said he himself has high blood pressure and is being treated for it in prison. His wife has diabetes and is treated at an expensive rate, per week, in Kenya. His mother has various medical problems, and her visits to the doctor costs about US$11 a time. He tried to work as a farmer to support his family, but was not successful.

Mr Necholas for the defendant says he hailed from a background of abject poverty, and this sadly drives people to seek ways, which are not legal, to clear debts and support their families.

It is accepted that Defendant is a courier rather than anything higher in the organisation. He hoped that this one job would be enough to let him clear his debts and start a clothing business.

The Defendant has written to the court admitting that this is a serious offence. He apologises to Hong Kong and to those around him for his activities in this regard, and tells the court that he is remorseful. He realises that he will have a severe sentence in respect of this offence, but he says that before he came here, he had no idea of the higher sentences that were given in Hong Kong for drug cases.

His most cogent feature of mitigation is his plea of guilty, which I accept was a timely plea, and I accept that he admitted immediately to the officers what the substance was. He has also attempted to give some assistance to the authorities by making a non-prejudicial statement, telling what he knows about the people who recruited him. Sadly, the information of the non-prejudicial statement is too vague to be of any real assistance to the authorities. It probably just confirms what they already know.

In considering sentence, I note that by virtue of the AG v Rojas [1994] 1 HKC 342, sentences for trafficking in cocaine are the same as those for heroin in Lau Tak Ming. It is modified by Abdallah Anwar Abbas [2009] 2 HKC 197 which sets guidelines for sentencing for trafficking in quantities over 600 grammes.

The narcotic quantity in this case is 626 grammes, which brings the quantity into the range of a 20 to 23 years’ sentence.

In this case, I take a starting point of 20 years. There is also an addition to the sentence, for the importation element, an aggravating factor which justifies enhancement. For those authorities, the case of Abdallah, (supra), is relevant. That says that the increase should be 2 years minimum, for a quantity of 1,000 grammes or over. For quantities less than 1,000 grammes, a range of enhancement is suggested in HKSAR v Chung Ping Kun CACC 85/2014. Accordingly, I enhance the sentence by 12 months to 21 years. The defendant is given a one-third discount for his plea of guilty, and is sentenced to 14 years’ imprisonment.