HKSAR v. ONUOHA FERDINAND CHETAM

CACC 335/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 335 OF 2015

(ON APPEAL FROM HCCC 282 OF 2015)

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R E A S O N S   F O R   J U D G M E N T
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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1. The applicant pleaded guilty to one count of trafficking in a dangerous drug, namely 1,190 grammes of a solid containing 529 grammes of cocaine.  He was sentenced by Deputy Judge Wilson Chan (‘the judge’) to 12 years and 9 months’ imprisonment. Having been refused legal aid on the merits, and also the Bar Free Legal Service, he sought leave to appeal against that sentence.

THE FACTS

2. The applicant is a Nigerian national.  On 24 December 2014, after a flight from Benin via Ethiopia, he arrived at the Hong Kong International Airport and was intercepted at the Customs Arrival Hall for customs clearance.  He was escorted to the North Lantau Hospital for an x-ray examination, as a result of which foreign objects were detected inside his body.  Under caution, the applicant admitted to have swallowed before his journey a total of 60 pellets of drug of an unknown nature, and that he was to await instructions.  Subsequently, at Queen Elizabeth Hospital, the applicant did discharge 60 pellets of a substance later confirmed to be cocaine, estimated to be worth $1.14 million in street value, the subject matter of the charge.  In a further video recorded interview under caution, the applicant stated, inter alia, that[1]:

“ He met a male called ‘Frank’ in a market in Cotonou, Benin where he bought spare parts. Frank told him that the spare parts were cheaper in Hong Kong and offered him US$4,000 and a free ticket to bring dangerous drugs to Hong Kong. He accepted the offer and swallowed the dangerous drug in a hotel.

  After he arrived in Hong Kong, he was told that Frank would call him and instruct him what to do in Hong Kong.  He only knew he had to discharge the dangerous drug and await Frank’s call.  He did not have Frank’s contact number and he had not yet received the reward.”

MITIGATION & SENTENCE

3. Of the applicant’s personal background, and submissions made on his behalf in mitigation, the judge said[2]:

“ By way of personal background, the defendant is 47 years of age. He was born in Nigeria in February 1968. The defendant is married with no children. Prior to his arrest, he was living with his wife in Nigeria. His father, a diabetic, is 90 years of age, and his mother passed away when the defendant was in custody in Hong Kong.

The defendant claimed that he has received education up to High School level in Nigeria. He had worked as a sales representative selling motorcycle tyres and parts. The defendant has a clear record.

In mitigation, Mr John Haynes submitted on the defendant’s behalf that he has pleaded guilty and admitted his liability for the offence at the earliest stage in the Magistrates’ Court. Mr Haynes went on to outline in some detail the background of the defendant and the reason for his committing the present offence, including the fact that he owed loan sharks in Nigeria some US$30,000 for having had to pay for his own wedding and a funeral of his father-in-law.

  However, as has been pointed out by the courts on many previous occasions, personal and familycircumstances of the defendant offer very little mitigation in a serious case of drug trafficking, such as the one before the court today.”

4. Applying the tariff case of R v Lau Tak Ming [1990] 2 HKLR 370, which applies equally to the trafficking in heroin and cocaine, the judge adopted a starting point of sentence of 18 years and 2 months’ imprisonment.  Noting that this case involved an international element, the judge followed HKSAR v Chung Ping Kun [2014] 6 HKC 106 and enhanced that starting point by one year to 19 years and 2 months’ imprisonment.  According the applicant a full one-third discount for his plea, he sentenced the applicant to the final sentence of 12 years and 9 months’ imprisonment.

GROUND OF APPEAL

5. In a note attached to his Notice of Application for Leave to Appeal against Sentence dated 28 September 2015, the applicant stated:

(a) He lost all his money in business in 2008.  He was forced to borrow money from others to keep his family afloat.  At the time of his offence, he was in debt for more than US$30,000 and had no means to repay it.

(b) He married in November 2014.  Before his honeymoon was over, his debtors went to his house and threatened his life.

(c) He was “forced” to commit the offence because of “frustration, predicament and poverty”.

(d) After his conviction, his mother died of sickness and hunger.  His father also was not of good health.  This broke his heart and, as a result, he had to spend three months in Siu Lam Psychiatric Centre.

(e) He had learned his lesson.  He was now reformed and would never commit any crime again.  He needed an early release to save his marriage.  He asked this Court to “temper justice with mercy”.

6. In a letter dated 2 August 2016, the applicant repeated much of what was previously stated in his Notice, as was his oral submissions before us.

CONSIDERATION

7. We agree with the respondent that this application is bereft of merit.  Even if true, poverty and desperation account for very little in the mitigation of such serious offences as trafficking in substantial quantities of dangerous drug.  Public policy compels this to be the only advisable sentencing approach.  As for the applicant’s other predicament, we note that whilst it was from “friends and well wishers” that he had borrowed money[3], the same people are now said to have threatened his life – a point that was never advanced in mitigation.

8. In sum, we do not see in this case any room for a further reduction in sentence.  Even if we accept what the applicant says about his parents and state of marriage to be true, as is often quoted of Cons VP in R v Mohamed Yaqoob Raj Mohamed Shipra [1988] 2 HKLR 493, at 494:

“ [A] man must appreciate before he commits a crime, that his family will suffer if he is caught and convicted.”

9. We are satisfied that the sentence of 12 years and 9 months’ imprisonment is neither wrong nor manifestly excessive.  In reaching this sentence, the judge had taken into account all relevant considerations and correctly applied all the relevant guidelines.  He cannot be faulted.

DISPOSAL

10. For the above reasons, the applicant’s application for leave to appeal against sentence was refused.

[1] Appeal Bundle, p 6F–K; the judge’s oral reasons for sentence.

[2] Appeal Bundle, p 6K–U; the judge’s oral reasons for sentence. 

[3] See the applicant’s note attached to his Notice of Application for Leave to Appeal against Sentence.