HKSAR v. OTIENDE JOHN OCHIENG

HCCC 386/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 386 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 had pleaded guilty to one count of trafficking in a dangerous drug, namely 1.31 kilogrammes of a solid containing 863 grammes of cocaine.

The facts, all too common in this court these days, is that the defendant, a Kenyan male, aged 41, was intercepted upon arrival in Hong Kong International Airport having arrived from Burundi via Addis Ababa in Ethiopia on flight ET608. Nothing was found in his luggage, but upon a medical examination foreign objects were seen inside the defendant’s body cavity. He subsequently during his stay in Queen Elizabeth Hospital, between 18 to 24 February last year, discharged a total of 83 packets of the drug which is the subject matter of the count. Also in the defendant’s possession was US$3,040.

Under caution, the defendant frankly admitted that his visit to Hong Kong was to traffic in dangerous drugs. He did not know who would collect the drugs from him but an unknown person would call him and make arrangements. He also revealed the person who had contacted him initially in Africa, and he said his reward would be US$6,000 for bringing the drugs to Hong Kong and the money would be paid to him after the unknown person picked up the drugs from him. He said that part of the money that was found on him was his own money and part was given to him.

The drugs were subsequently examined by the Government Chemist and the street value of the dangerous drugs is estimated to be about HK$1,295,590.

The defendant, as I have said, pleaded guilty, and in mitigation I have read letters, particularly a letter from Father John Witherspoon. It seems to me that this international trade of trafficking in drugs has to really not only be attacked in Hong Kong but also as its source and it is clear that efforts have been painstakingly made by Father John to this effect.

I am going to do an unusual thing. It is that I consider that the communication from Father John is of such that I will order that his letter and attachments be sealed and not to be opened without the court’s order if anyone should wish to look at it because it contains very useful information.

I am also dissatisfied with the way that our investigating authority had conducted these investigations and what has been revealed in the letter, which I have just referred to. As I have said, this is an international trafficking and the horizon has to be broadened. There has to be inter‑departmental cooperation in this plight against drug trafficking. It is time that the different departments, the police, the Customs, the Immigration, cooperated in a way that would bring the traffickers to justice.

What I have heard so far is that it has been too long in that nothing seems to have been done since Deputy Judge Stewart-Moore drew attention to this matter, I am told, in a case which Mr Melwaney was in, in 2014.

It is sad, but hopefully if the authorities will wake up and realise that it is not a departmental matter, it is an international matter and it needs cooperation not only with the investigating authorities in Hong Kong but also the investigating authorities in Kenya and other countries.

Having said all that, I am bound by the guidelines which has been laid down by Court of Appeal in the case of Abdallah in 2009 where it is laid down that 600 to 1,200 grammes of trafficking in the drug will merit a sentence of 20 to 23 years.

The amount here is 863 grammes of cocaine. So within range, therefore, I would adopt a starting point of 21 years. There is also the international element which is an aggravating factor, so I will add 1 year to that 21 years making it 22 years as a starting point.

Now normally, a sentencing court does not take into account any matter which, particularly if any assistance has been rendered, if it had not borne fruit. But I have already indicated my dissatisfaction in this case and particularly the response to the efforts of Father Witherspoon by the authority which is all revealed in his very detailed letter which I have ordered to be sealed.

So I will, therefore, consider a further discount. And, normally, the further discount may range between 40 to 50 per cent. But as Stock J, VP (as he then was) of the Court of Appeal had noted that if the information led nowhere, then if the court took into account any credit to be given of information to the authorities the system would be open to abuse, and this was in the case of HKSAR v W [2014] 2 HKC 459.

The editor of Sentencing in Hong Kong, 7th edition, at page 56, also included the words of Stock J, VP (as he then was) that “Although this general rule might yield if the provision of the information is shown to bear no fruit ‘by reason of clearly culpable inaction on the part of the law enforcements authorities’, the burden of showing which rests on the accused, such cases are, said his Lordship, ‘wholly exceptional’.”

What little I can do to encourage better communication, co-operation between the various investigative authorities in Hong Kong, I am going to take the exceptional step in this case, and it is not a case which should be reflected in other cases because it is only applicable to the particular facts of this case that I will give the defendant a reduction of 40 per cent rather than one-third.

So of the 22 year starting point, then a reduction of 40 per cent will yield a sentence of 13 years and 2 months.

So the defendant is sentenced to 13 years and 2 months. As indicated, if in the future anything turns on what has been said, a future court can deal with that.