HKSAR v. Jaiteh Musa and Others

DCCC 505/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 505 OF 2015

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REASONS FOR SENTENCE

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Charges

1.D1 is charged with Counts 1 to 4.  He pleads not guilty to Count 1 but pleads guilty to Counts 2 to 4.  However, he says he was not trafficking in those three counts with anyone else.

2.After trial, I acquit D1 of Count 1.  I also acquit the other defendants of Counts 2 to 4.  I accept D1 was trafficking in dangerous drugs on his own in Counts 2 to 4.

Facts

3.In Counts 2 to 4, police sent out a decoy buyer PW2 to buy dangerous drugs in the bar area in Wanchai.

4.On 21 January 2015, PW2 bought a packet of drugs from D1 for $1,000.  It was 0.38 gramme of a solid containing 0.19 gramme of cocaine. (Count 2)

5.Later that night, PW2 returned and bought another packet of drugs from D1 for $1,000.  It was 0.34 gramme of a solid containing 0.16 gramme of cocaine. (Count 3)

6.Several days later, PW2 went to the same spot. He managed to buy two packets of drugs from D1 for $2,000.  It was 0.73 gramme of a solid containing 0.35 gramme of cocaine.  Soon afterwards, D1 was arrested by police. (Count 4)

Record

7.D1 is a Gambian national.  He came from Africa to Hong Kong in 2013.  He has instituted a torture claim here.  D1 is aged 46. He has a clear record in Hong Kong.

Mitigation

8.Counsel says D1 is alone in Hong Kong, relying on government subsidy for a living.  His family members are all in Africa.

9.Counsel says D1 is remorseful.  He has pleaded guilty to Counts 2 to 4 and he has a clear record here.

10.Counsel agrees that the three offences (ie Counts 2 to 4) can be regarded as separate offences.  He, however, asks the court to consider the totality sentence for all the three counts.

Sentence

11.It has been established that the guideline for heroin trafficking is applicable to cocaine trafficking: Attorney-General v Rojas [1994] 1 HKC 342.

12.The drugs involved in Counts 2 to 4 in terms of purity weighed 0.19 gramme, 0.16 gramme and 0.35 gramme respectively.  The total weight of cocaine involved in all three counts is 0.7 gramme.

13.D1 sold cocaine in the bar area in Wanchai in a matter of eight days between 21 and 29 January 2015.  There were three sales: two on 21 January 2015 and one on 29 January 2015.  All the drugs were sold to the same decoy buyer, PW2.

14.The starting point for each of Counts 2 to 4 should be 2 years’ imprisonment.  The total sentence for the three counts should be one of 3 years’ imprisonment.

15.D1 is convicted on his own plea on those three counts.  He deserves one-third discount in sentence.

16.On Count 2, D1 is sentenced to 16 months’ imprisonment.

17.On Count 3, D1 is sentenced to 16 months’ imprisonment.

18.On Count 4, D1 is sentenced to 16 months’ imprisonment.

19.I order 4 months of each of the sentence in Count 3 and Count 4 to run consecutively to each other and also consecutively to the 16 months’ imprisonment in count 2.  The total sentence for D1’s pleading guilty to Counts 2 to 4 is therefore one of 24 months’ imprisonment.