HKSAR v. OKOYE JAMES AZUKA

HCCC 205/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 205 OF 2015

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

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COURT:

Mr Okoye, you were arrested on 14 May 2014, for the suspected importation of dangerous drugs. Under caution, upon arrest, as is your right, you did not say anything. However, after arrest and on 15 May 2014, you were taken to Queen Elizabeth Hospital where you passed a single pellet of cocaine. You were therefore arrested again and on this occasion, you admitted that the drugs were yours.

Under video-recorded interview on 16 May 2014, you admitted your involvement in trafficking in dangerous drugs from Lagos to Hong Kong, along with Chukwuleta Sunday Freedaline, and to meeting up with Mr Modebelu who was to receive the drugs.

On 28 November 2014, at Eastern Magistracy, you indicated you would be pleading guilty to trafficking in dangerous drugs. You eventually pleaded guilty to one count of conspiracy to traffic in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159A and C of the Crimes Ordinance, Cap 200, before the court on 15 May 2015. This charge relates to 31 pellets of cocaine. It does not identify the weight - and I will come back to that later. You confirmed that plea before Deputy High Court Judge Lee, SC, on 18 November 2015 and you admitted a Summary of Facts dated 3 March 2015.

The Summary of Facts which you admitted indicated that the Customs and Excise had carried out an operation at Hong Kong International Airport on 14 May 2014, and you, along with Chukwuleta and Modebelu, were the subject of later observation. You were observed to go to Chungking Mansion where you were seen to meet up with Modebelu. Both of you were seen later going to Block C, Pak Tai Mansion. You have said that you went to the 2nd Floor, to Flat 14, Room C, and that you excreted 30 pellets of cocaine within Room C, along with Chukwuleta who was also excreting drugs.

A police raid on the room recovered 319 pellets or packages of cocaine in all, with a total weight of 5,269 grammes and a narcotic content of 2,901.89 grammes, the street value of which was $5,550,677.

As a result of the video-recorded interview, you indicated that you were prepared to assist the Customs and Excise and you gave three non-prejudicial statements dated 23 July, 22 October and 26 November 2014, and you attended an identification parade in which you identified Modebelu. You gave evidence against Chukwuleta and Modebelu in a trial against them from 19 January to 23 January of this year and before this court. You were vigorously cross-examined by two experienced defence counsel but you maintained your story.

As I mentioned earlier, the charge to which you pleaded guilty in the Eastern Magistracy refers to 31 pellets of cocaine. That is the single count which you face under HCCC 205/2015. That is reflected in Count 2 on the indictment against Modebelu, under HCCC 523/2014, and my finding on the weight to be attributed to those 31 pellets needs to be the same for both your matter before me today and his.

Mr Grounds has suggested to the court that one pellet was excreted at Queen Elizabeth Hospital which weighed 10.6 grammes, but that you are entitled to have the other 30 pellets quantified at the lowest of the weights of the drugs recovered from Room C.

I do not accept that quantification as Mr Grounds suggests, but given that you are pleading guilty to a large quantity of drugs, I am prepared to take the average weight of all drugs recovered plus the actual weight of the pellet discharged in hospital which falls under Mr Grounds’ suggested method B. That calculation results in a total estimated weight of 286.558 grammes rather than 265.67 grammes as suggested by Mr Grounds.

I actually consider the 286.558 grammes generous to you because it may very well be that you had difficulty swallowing as many pellets as the others simply because the pellets in your bowl were, on average, heavier than the pellets you said that the others were swallowing, as can be seen from the fact that the Exhibit P11 containing 70 pellets had an average pellet narcotic content weight of 10.3 grammes.

But taking into account the gross weight calculation of the street value of $983 per gramme, the 31 pellets that you imported would have had a street value in the range of $400,000 to $500,000, if I considered the whole weight range, the 265 suggested by Mr Grounds and the 286 grammes average weight.

The sentencing guidelines for the importation of cocaine can be found in HKSAR v Lau Tak Ming [1990] 2 HKLR 370. The starting point after trial for the importation of between 200 to 400 grammes is 12 to 15 years. For 286.5 grammes, I reach a starting point of 13 years and 2 months.

You imported these drugs into Hong Kong from Nigeria. That is an aggravating feature of your offending and under HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, which was followed in HKSAR v Dewi Kartika Sari Binti Musli, CACC 101/2012, and HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal has indicated that the appropriate enhancement of sentence for importing between 250 and 500 grammes of dangerous drugs would be between 6 months to 1 year. So the starting point that I have mentioned above will be enhanced by 6 months to 13 years and 8 months.

You have given evidence. It was divided into evidence adduced by and relied upon by the prosecution as to the events on 14 May 2014 and matters which occurred in Lai Chi Kok some time later. Those matters were raised by the 2nd defendant and they went to credibility alone.

As to the events surrounding the importation of cocaine on 14 May 2014, I have no doubt that you gave truthful evidence so far as you can best recollect it now after the passage of time.

As to matters which went to credibility alone and which were related to paragraphs 20 to 24 of the Admitted Facts, the prosecution were constrained by those facts which they were required to admit from the records of the Correctional Services Department. But you nevertheless maintained your version of events. That version of events was not entirely consistent with those Admitted Facts but nor, in my view, was it completely inconsistent either, as I am sure that there can be occasions when segregated prisoners can meet, for example, when holding prisons are travelling to and from court and other prisoners are waiting for clinical appointments.

There clearly is evidence of an early visit to you by a solicitor although I cannot make any findings as to what that very short interview was about, and I note, in any event, that did not affect the view taken by the jury as to your credibility in respect of the events about which they had to decide.

I have read your letter, Mr Okoye, and I heard all that Mr Grounds has ably said on your behalf. But the personal mitigation advanced on your behalf in respect of your personal background and financial difficulties which led to the commission of this offence cannot assist you today. It is most unfortunate that your parents were killed as a result of ongoing violence in your country and it is commendable that you took on the responsibility for your family.

But, Mr Okoye, many others suffer horrendous deprivation and poverty in countries torn by war, famine and social unrest, yet they do not turn to crime and to international drug trafficking which alleviates your burden but ultimately adversely affects the lives of very many others. This offence is far too serious for that part of the mitigation to have any impact upon sentence and is, in any event, subsumed into the normal one-third discount after plea.

However, you have given assistance to the authorities and have given evidence against Chukwuleta and Modebelu. You indicated your willingness to do so at a very early stage and you have maintained that willingness. Following the guidelines set out in HKSAR v W [2004] 3 HKC 376 and Z v HKSAR [2007] 1 HKLRD 977, where a defendant has not only given information but also provided truthful, material evidence in trial, the appropriate discount for his plea is 50 percent.

Mr Grounds, doing his best on your behalf, suggests that the court should give you a discount even greater than that for the threats which you have received and for the ongoing risk to you, having given evidence against not only Mr Chukwuleta, but also the person Mr Grounds referred to as “The Quartermaster” here in Hong Kong, Mr Modebelu.

I do not believe that the threat is as great as suggested. Having seen you give evidence, it became apparent, Mr Okoye, that you can take care of yourself and have as much anger against Mr Modebelu for being part of the group who enticed you into crime as he may have against you for giving evidence against him. At the end of the day, you chose to import dangerous drugs into Hong Kong and you must bear the responsibility for that whilst, at the same time, being given the appropriate credit for your assistance. I believe that the appropriate credit is that of 50 per cent discount.

So taking everything which I have said into account, I sentence you to a total of 6 years and 10 months’ imprisonment.