HKSAR v. DIALLO OUSMANE alias MADUABUCHI MADUBUGWU

HCCC 311/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 311 OF 2015

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

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COURT: The defendant, Mr Diallo Ousmane, alias Maduabuchi Madubugwu, pleads guilty to one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The particulars of offence are that the defendant on the 13th day of February 2015 outside exit B2, Jordan MTR station, Jordan Road, Yau Ma Tei, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1.31 kilogrammes of a solid containing 617 grammes of cocaine.

Facts admitted

On 13 February 2015 at about 0019 hours, the police stopped and searched the defendant, who is a Form 8 recognizance holder, at exit B2, MTR Jordan station. Inside a red recycle bag held in the right hand of the defendant, the police found a white plastic bag containing a transparent plastic bag containing 80 pellets of dangerous drug, later found to be a total of 1.31 kilogrammes of a solid containing 617 grammes of cocaine. The defendant remained silent under arrest and caution.

In a video recorded interview under caution conducted subsequently, the defendant admitted, inter alia, to be a Nigerian named Maduabuchi Madubugwu, but had entered Hong Kong using a Mali passport as a refugee in February 2014.

He had gone to the MTR Jordan station exit B2 to deliver the dangerous drug to a person for a reward of $4,000 for a Nigerian who had given him money to buy food or things when he was unemployed. This Nigerian would call the person to pick the dangerous drug up from the defendant.

He did not know the name of the Nigerian, but knew that he lived at 1st Floor, Mirador Mansion in Tsim Sha Tsui.

The estimated market retail value of the dangerous drug in question is $1,295,590.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is aged 31, born in Nigeria. His family is in Nigeria and he has two children. He was a salesman selling mobile telephones. He borrowed $10,000 and came to Hong Kong intending to buy mobile telephones to take back to Nigeria for sale to make a profit.

Unfortunately, the money was stolen. He was threatened by those who lent him the money and his life was in jeopardy. He applied to remain in Hong Kong as a refugee and his application is being processed.

While in Hong Kong, he came across a Nigerian male who always helped him when he was in difficulties. He foolishly agreed to deliver the dangerous drug for this Nigerian male for a reward of $4,000.

The counsel for the defendant submits a letter of Father Wotherspoon, a Catholic priest, stating that the defendant had helped in his campaign to combat trafficking into Hong Kong from East Africa, and, as a result, only one Tanzanian had been arrested this year for such an offence, as compared to one or more a week before the campaign started in 2013.

The counsel for the defendant asks the court to take all mitigation into account and adopt a starting point of 20 years’ imprisonment.

Sentence

According to AG v Rojas [1994] 1 HKC 342, the tariffs for trafficking in heroin are applicable to trafficking in cocaine. For a quantity of 600 to 1,200 grammes of cocaine, the starting point is 20 to 23 years imprisonment.

In the present case, 617 grammes of cocaine is involved. The starting point is therefore about 20 years imprisonment.

As to the assistance the defendant had rendered in stopping drug mules from East Africa, Father Wotherspoon just spells out in the letter that the defendant had helped, without elaborating on what the defendant had done.

In any event, according to the authorities of HKSAR v Masham Deborah James, CACC 381/2015, and HKSAR v Akinyi Grace Sylvia, CACC 324/2015, which are cited by the counsel for the defendant, such assistance should be matter for consideration by the Executive for clemency instead of judicial discretion in reduction in sentence.

The court is of the view that there is no justification not to follow the sentencing guidelines, thus adopting 20 years imprisonment as the starting point. Giving credit to the defendant’s plea of guilty, the court sentences him to 13 years 4 months imprisonment.

Should there be any subsequent change in the circumstances of the defendant, he may like to take the matter in relation to sentence to the appropriate authority.