HKSAR v. Ousmane Issa Boubacar

HCMA 381/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 381 OF 2015

(ON APPEAL FROM ESCC 1144 OF 2015)

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JUDGMENT
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1.This was an appeal against sentence.

2.The Appellant was charged with one count of trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

3.The appellant pleaded not guilty and was convicted after trial.  He was of clear record and nothing was advanced in mitigation.  He was sentenced to a term of 21 months’ imprisonment.

The facts

4.At around 4:09 am on 12 April 2015, the appellant was observed by police officers acting suspiciously at the junction of Ezra’s Lane and Pottinger Street, Central.  During a stop and search operation, the police found one plastic bag containing 0.1 grammes of cocaine in the appellant’s left sock, and two plastic bags containing a total of 1.45 grammes of herbal cannabis in his right sock. 

The magistrate’s reasons for sentence

5.In his concise reasons for sentence, the magistrate[1] pointed out that the sentencing guidelines for heroin are applicable to cocaine.  He noted that the sentence for trafficking up to 10 grammes of cocaine was 2 to 5 years’ imprisonment and the tariff for trafficking under 2,000 grammes of herbal cannabis was 4 months. 

6.The magistrate did not take into account for the purposes of sentence the herbal cannabis in view of the small quantity involved.  He only sentenced for cocaine.  He said:-

“…the quantity of Cannabis involved was minimal, the court did not take any approach to take into account of the Cannabis involved.”

7.He took 21 months’ imprisonment as the starting point for trafficking in the cocaine.  He considered there to be no mitigating factors which warranted a reduction of sentence.  

8.The magistrate referred to the relevant tariffs, that is HKSAR v Chor Lui [2001] 3 HKLRD 95 for herbal cannabis; and R v Lau Tak-ming [1990] 2 HKLRD 370 for cocaine.

Ground of appeal

9.The appellant’s only ground of appeal is that the sentence imposed is too severe. 

Discussion

10.The magistrate correctly referred to the guidelines as set out in Lau Tak-ming for trafficking in cocaine.

11.In HKSAR v MD Tarik, HCMA 648/2014, the appellant was convicted after trial for one charge of trafficking in dangerous drugs.  In consideration of an appropriate starting point for 0.25 grammes of cocaine, Deputy High Court Judge Wilson Chan found that a starting point of 18 months’ imprisonment was appropriate.  The sentence was adjusted upwards to 20 months for the other herbal cannabis and cannabis resin found on the appellant. 

12.The drugs involved in the present case was an amount of 0.1 grammes of cocaine, given the very small quantity involved in my view, a lower starting point of 18 months’ imprisonment is appropriate. 

Conclusion

13.Accordingly, the appeal is allowed to the extent that the sentence of 21 months’ imprisonment is reduced and substituted by a sentence of 18 months’ imprisonment.

Mr David Chan, ADPP, of the Department of Justice, for the respondent

The appellant appeared in person