HKSAR v. OMONDI GERALD OTIENO

HCCC 255/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 255 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 has been convicted on his own plea of one charge of trafficking in a dangerous drug. The plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 19 June 2015.

The Particulars of Offence provide that on 9 December 2014 at the Shenzhen Bay Control Point, New Territories in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 921.1 grammes of a crystalline solid containing 911.9 grammes of methamphetamine hydrochloride, commonly known as the “Ice” drug.

The Summary of Facts, which has been admitted by the defendant, provides, inter alia, that in the afternoon on 9 December 2014 the defendant entered Hong Kong as one of the passengers in a 7‑seater through the Shenzhen Bay Control Point, New Territories, in Hong Kong. Upon search, 59 packets of suspected dangerous drugs were found hidden in various parts of his clothes, including his socks and his underpants. Upon a further search, 19 packets of suspected dangerous drugs were found hidden in five pairs of trousers in his suitcase.

The defendant was sent to a hospital for checking. During his stay in the hospital, he discharged through his body a total of nine packets of suspected dangerous drug.

A writtenrecord of interview was obtained from the defendant in the hospital. In the interview the defendant stated, inter alia, that:

(1) He could read English;

(2) He came to Hong Kong for transit to Indonesia;

(3) He had swallowed a total of 86 packets;

(4) The company he worked for arranged his flight tickets and the hotel accommodation;

(5) He did not know any of the other people in the 7‑seater.

The 87 packets of suspected dangerous drug were examined and confirmed to be containing 921.1 grammes of a crystalline solid containing 911.9 grammes of methamphetamine hydrochloride.

As in December 2014, the retail value of the dangerous drug seized in this case was estimated to be around HK$400,000.

In the Summary of Facts, the defendant expressly admitted that he was unlawfully trafficking in the methamphetamine hydrochloride by importation.

By way of background, the defendant is 27 years of age. He was born in Kenya in October 1987. The defendant is married, and prior to his arrest he lived with his wife. He has no children from the marriage but has one child, a daughter 4 years old, born out of wedlock. The defendant had been engaged in the garment business but had fallen into debt and was pursued by loan sharks. In short, I was told that he was in a state of bankruptcy.

The defendant has a clear record.

In mitigation, Mr Mitchell submitted on the defendant’s behalf that the defendant is remorseful for his act, but understands that the only real mitigation he has is his plea of guilty.

Mr Mitchell helpfully provided the court with a written outline mitigation, which detailed the defendant’s personal circumstances and reasons for his commission of the present offence.

Mr Mitchell submitted that the defendant was not a prime mover or organiser of this crime, but was a courier only who, facing difficult personal circumstances, has been preyed upon and persuaded to engage in this dreadful trade.

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

The dangerous drug involved in the present case is 921.1 grammes of a crystalline solid containing 911.9 grammes of methamphetamine hydrochloride. The offence was committed on 9 December 2014, ie, after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the “Ice” drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the “Ice” drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 600 grammes to 1,200 grammes of heroin, the guideline starting point after trial should be 20 to 23 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (911.9 grammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 21 years and 6 months’ imprisonment.

The defendant was caught trying to have the drug in question brought from Shenzhen, China to Hong Kong. The initial starting point of 21 years and 6 months’ imprisonment should be enhanced by 1 year and 9 months for the international element in the present case [see:HKSAR v Chung Ping Kun [2014] 6 HKC 106, at paragraph 9]. This would take the starting point up to 23 years and 3 months’ imprisonment.

I shall give the defendant a full one-third discount for his guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.

Defendant, can you stand up, please.

The defendant is accordingly sentenced to 15 years and 6 months’ imprisonment.