HKSAR v. ABDOU MAIKIDO ABDOULKARIM

HCCC 458/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 458 OF 2014

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

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COURT: The defendantpleaded guilty today to one charge of trafficking in a dangerous drug. The drug in question was 2,410.28 grammes of a crystalline solid containing 2,357.23 grammes of methamphetamine hydrochloride.

The facts admitted by defendant, show he was refused entry into Hong Kong and taken for Customs Clearance. The Customs and Excise officers, after x-raying his luggage, had suspicions about the contents of his backpack, and an ion scan proved positive for methamphetamine.

In his luggage were found 6 women’s handbags and four packets of a crystalline solid were found behind the internal lining of each bag, a total of 24 packets. Also in his luggage were six mobile telephones with batteries, and an e‑ticket in the defendant’s name for a flight to Dubai on 8 April 2015 with an onward flight to Accra on 9 April 2015. There was also an express coach ticket, and a quantity of cash in different currencies, the largest amount being US$2,730.

After arrest and caution, the defendant was questioned and he said he did not know they were drugs, that he had been given the bags by a friend who wanted the defendant to deliver them to his girlfriend who would contact him in Hong Kong.

At the request of Customs and Excise, the defendantagreed to take part in a controlled delivery and did so but it was not successful.

In a video interview the defendant claimed he was a fashion trader travelling alone. He was transiting through Hong Kong on his way home and wanted to go to Accra. He denied knowledge of the drugs present in his backpack. He could not remember the name of his friend and said he had never met Georgina, the name of his friend’s girlfriend.

Immigration records show that the defendant had moved in and out of Hong Kong four times between January and March 2014. He stayed one night on each occasion. His entries and departures were through Shenzhen Bay control point, or through the terminals at Macau Ferry, Lok Ma Chau or Hung Hom.

Emirates Airlines, the purported issuers of the e-ticket, revealed there was no record of the defendant’s flight in their booking system.

Later analysis by the Government Chemist of the 24 packets established the quantity and nature of the drug as set out in the charge.

Its estimated retail value at the time of the arrest was $980,983.

The defendant admitted that he trafficked in dangerous drugs in Hong Kong as set out in the indictment.

The defendant has no conviction record in Hong Kong, and I am advised he has a clear record in Nigeria as well.

He holds a Nigerian passport. He was born there on 2 October 1978. He has completed secondary education. He claimed to be a merchant selling clothes on the day of his arrest. He was not a drug user. He was married, living in Nigeria when arrested.

Prior to mitigation an application was made by defence counsel to adjourn this case for sentence for a further two months so that the defendant could liaise with Customs and Excise over information that might be valuable to them. That application was refused because I considered the defendant has had ample time to make any arrangements of this kind with Customs and Excise before today.

In mitigation I was advised that the defendant seeks a one‑third discount. He has been living in Shenzhen since November 2013. He is in the garment trade but he also sells telephones as a side-line. He is not a drug addict, not a drug user, and went on this trip with little thought before he entered into the arrangement. Effectively it has been stated that he is not more than a courier. He helped Customs with a controlled delivery. It was pointed out that he will be separated from his family by a sentence of imprisonment. His father died recently.

The narcotic quantity in this case is 2,357.23 grammes.

The guidelines applicable to sentences for trafficking in methamphetamine hydrochloride are contained in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125.

The band which is relevant for sentencing is the top one, for quantities of drugs of 600 grammes and upwards. The sentencing range for that quantity is 18 years and upwards.

The offence in the instant case was committed on 7 April 2014 about one month before the judgment in HKSAR v Tam Yi Chun CACC 524/2011 was handed down. That judgment set out revised guideline sentences for cases involving large quantities of dangerous drugs.

Here, the narcotic quantity was almost two-and-a-half kilogrammes which indicates the appropriate sentence starting point to be 22 years’ imprisonment. It was also necessary to enhance that starting point to take into account the importation factor.

HKSAR v Abdallah [2009] 2 HKLRD 437 indicates that for amounts of dangerous drugs involving one kilogramme the enhancement level should be not less than 2 years’ imprisonment.

I take 22 years as a starting point and enhance that by 2 years to 24 years.

When considering the discount, I note that the defendant was arrested on 8 April and first appeared in the Magistracy on 9 April 2014. On 17 October 2014 he pleaded guilty at committal. On 14 January 2015 he appeared for sentence in the High Court and told the court that he did not know that the dangerous drugs were in the bag he carried. He also told the court that he wanted to be sentenced anyway for the offence on that day, but the Deputy High Court Judge who was presiding clearly could not accept that plea and explained why that was so to the defendant. The plea of guilty was vacated and conviction set aside.

A For Mention hearing date followed on 16 April 2015 and indicated an adjournment for plea. On 6 May 2015 a plea of not guilty was entered and the case was ordered to be re‑listed.

On 27 July 2015, a pre-trial review proceeded and the trial dates were fixed from 7 September 2015 with eight days allotted. On 14 September, three days before the trial was due to start, the court was advised by letter that the defendant would plead guilty to the charge.

I set out this timetable to illustrate the waste of court time and public money that has been caused by the defendant’s dilatory behaviour, and I have considered whether this would justify my reducing the usual one-third discount for plea.

I note that the defendant has been legally advised throughout these proceedings. I note too that on all occasions after his arrest, an Igbo Interpreter has been made available to him.

His initial plea was admitted as being made voluntarily and with a full understanding of the charge. On its face it was an unequivocal plea of guilty.

I am quite aware of the one-third discount for plea being an important factor in court sentencing. However, the norm is that the one-third discount is given for a timely plea. It is not right that a discount remain available at its full range and in all cases, especially when there has been delay.

A three day window before trial advising his plea means that an eight‑day trial has been wasted as it is not possible for a comparable case to be slotted into those days as would be desirable. He has also had a long gap between the arrest and the initial plea to have legal advice. There was further opportunity for legal advice between 14 January and the pre‑trial review. Between the pre-trial review and the start of the trial there has been further time for him to get advice, or to consider giving information.

I consider that some note should be taken of the fact of this delay. I take the 24 year sentence and discount it by one-quarter to 18 years.

The sentence I pass therefore is 18 years.