HKSAR v. OTIENO MIRIAM ACHIENG

HCCC 486/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 486 OF 2016

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

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COURT:

The defendant had pleaded guilty in the Magistrates Court to one count of trafficking in a dangerous drug, namely 1.02 kilogrammes of a powder containing 815 grammes of cocaine, and she has been committed to this court for sentence.

The facts reveal, as is all too common nowadays, that the defendant is a Kenyan national and she departed Nairobi and arrived in Hong Kong via Dubai. She was searched at the Hong Kong International Airport; nothing illegal was found but suspecting internal concealment, she was sent to the North Lantau Hospital for medical examination. Hospital X‑ray revealed she had suspected substances in her body cavity.

Upon arrest and caution, she said that she had swallowed some pallets to bring into Hong Kong for a reward of US$4,000. The defendant was admitted to the Queen Elizabeth Hospital and in that period whilst she was in hospital, she excreted a total of 108 pallets of the cocaine which is the subject matter of the charge.

In a video-recorded interview, the defendant claimed that an unknown Nigerian male gave her the drugs in Dubai and that she was told to contact a Kenyan female upon her arrival in Hong Kong and she said she was promised a reward of US$4,000 after the delivery of the dangerous drugs.

The total street value of the dangerous drug seized was $1,082,220.

In mitigation, Mr Poots pointed out that the defendant was only a drug mule and that she was very remorseful. In fact, in her letter to the court expressed her remorse in that she regrets fully what she had done, she misses her children and as part of her remorse, she had also assisted Father Wotherspoon’s campaign whilst she was in custody in trying to deter others like herself from coming to Hong Kong with drugs.

It is a sad and unfortunate fact that the defendant has left a young family in Kenya. However, it is also a tragic and sad fact that the cocaine, if dispersed among the community in Hong Kong, will affect many, many more families, young persons and old, and affect the children of those families. That is why Hong Kong takes a very serious view of people bringing drugs into Hong Kong.

For sentencing for large amounts of cocaine, the Court of Appeal has laid down guidelines and in the case of Abdallah [2009] 2 HKC 197 in 2009, for trafficking between 600 grammes to 1,200 grammes of cocaine, a suggested sentence of between 20 to 23 years’ imprisonment is recommended. In this case, the defendant had brought into Hong Kong 815 grammes of cocaine which would merit a starting point sentence of between 21 to 21½ years’ imprisonment after trial.

In view of the background, I would adopt the lower of that starting point of 21 years. But I have to add on the international element as an aggravating factor. For this type of offence and the amount, I would consider that 1 to 1½ years’ enhancement would be appropriate.

Again, because of the background and the fact that she has assisted in Father Wotherspoon’s campaign, I would only add 1 year enhancement for the international element, thus bringing the sentence to 22 years. I give her the full one-third off for her plea, which would bring it down to 14 years and 8 months.

So the defendant goes to prison for 14 years and 8 months.