HKSAR v. Masanja Ashely Selemani

HCCC 131/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 131 OF 2016

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REASONS FOR SENTENCE

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1.On 30 June 2017, coinciding with the first day of trial, the defendant pleaded guilty to a single count of trafficking in a dangerous drug, namely 1.4 kg of a solid containing 782 g of cocaine. The estimated street value of the cocaine at the time of the offence was $1,478,400.

2.The defendant is a 31 years old Tanzanian male who arrived in Hong Kong in the afternoon on 29 September 2015 on an inbound flight from Ethiopia, having originated in Burundi.  He was stopped by customs officers at Hong Kong International airport for a routine check but nothing illegal was found.  He was behaving suspiciously at the time and customs officers escorted him to a hospital for an internal body check.  An x-ray revealed that he had a number of foreign objects in his body cavity.  After the x-ray, he was taken to the toilet where he discharged 19 pellets.  Later in the evening, he discharged a further quantity of pellets, totalling 90 in all.  It was later confirmed that the pellets contained the quantity of cocaine as set out in the charge.

3.In a subsequent interview under caution, the defendant admitted he was trafficking in the drugs.  He confirmed that he lived and worked in Tanzania.  He said he had been offered US $10,000 to deliver the drugs to Hong Kong but had yet to receive the money.  He said he knew the substances were drugs but he did not know the actual type of drug.  He said an unknown person told him to go somewhere to pick up the drugs in Uwanda and to take them to Hong Kong.  After arriving in Hong Kong and discharging the drugs, an unknown person would contact him to collect them.  He said he purchased his own airfares from Africa to Hong Kong in cash.

4.In the agreed facts the defendant admits and accepts that he was importing the drugs into Hong Kong.

5.The submission on behalf of the defendant provided little, if any, meaningful mitigation because of the grievousness of the offence.  Not much is independently known about the defendant except what he has informed the Court through his counsel, Mr Trevor Beel. 

6.I am informed that the defendant was in a de facto relationship and has two children, a daughter and a son aged 8 and 4 years respectively.  His background and personal circumstances are quite tragic.  I am also informed that his de facto wife passed away unexpectedly whilst he has been in custody.  The children are now being looked after by his de facto wife’s sister.  His family were caught up in the conflict between the Hutu and Tutsi tribes and were forced to live as refugees.  Even so, the defendant was able to secure a good education for himself and attain a Bachelor of Banking and Finance.  I am informed that he worked in the mining industry and eventually set up his own company, operating as a dealer in minerals.  No explanation has been provided as to how he got involved in this offence. 

7.As acknowledged by Mr Beel, the only real mitigating factor is the defendant’s plea of guilty.  The question arises whether he is entitled to the normal one third discount on a plea of guilty. In brief, the defendant, after his arrest and charge, was brought before the Magistracy where eventually on 18 March 2016 he was committed for trial in the Court of First Instance having indicated he would plead not guilty to the charge.  On 20 April 2016, his case was fixed for trial to commence on 30 June 2017 with 7 days set aside, and for a pre-trial review on 6 April 2017.  It is unfortunate that his case was given a trial date over a year later, and hopefully the new practice direction will go some way to address such delay.  See Practice Direction 9.3. 

8.At the pre-trial review he was represented by counsel who was subsequently replaced by Mr Beel.  The defendant’s then counsel informed the Court that he would challenge the admissibility of the caution statement by way of a voir dire hearing, and arrangements were made for that to take place on the first day of trial.  Even though everything was done in readiness to deal with the challenge to the admissibility of the caution statement, the defendant changed his plea as already noted. 

9.A new regime has been introduced by the Court of Appeal of affording discounts of sentence for guilty pleas in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  This decision was handed down on 2 September 2016, and as stated in that decision at paragraph 236, the revised practice would not apply in respect of cases in the Court of First Instance where trial dates had already been fixed.  Under the previous practice, a defendant was usually entitled to the normal one third discount when the plea of guilty was entered on the first day of trial.  Mr Beel has submitted two authorities, HKSAR v Lo Chi Yip and Another [2000] 3 HKLRD 270, 276C-277J; and HKSAR v Ting Chiu and Another [2003] 3 HKLRD 378, [17], [21] to [23].  After receiving submissions on the issue, I have decided to give the defendant the normal one third discount for his plea of guilty.

10.Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. 

11.According to the sentencing guidelines for the quantity of narcotic content involved of 782 g of cocaine, the defendant is in the band of 600 to 1,200 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 20 to 23 years’ imprisonment. According to the narcotic content of cocaine in this case, I will adopt a starting point of 20 years and 11 months’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. 

12.The sentencing guidelines also require an enhancement for the international element of bringing drugs into Hong Kong. The level of enhancement for an international element in the trafficking of drugs was discussed in HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal explained that the enhancement for amounts above 1 kilogramme would not be less than 2 years’ imprisonment.  The matter was further discussed in HKSAR v Chung Ping Kun [2014] 6 HKC 106 where a broad guideline was suggested where the quantity of drugs is less than 1,000 g.  It was suggested that the level of enhancement for between 500 and 1,000 g, is 1 to 2 years.  Accordingly, the starting point will be increased by 1 year and 6 months to 22 years and 5 months’ imprisonment. 

13.The defendant has pleaded guilty and he is entitled to a one-third discount to the starting point, which will result in a sentence of 15 years’ imprisonment. 

14.The defendant is accordingly sentenced to 15 years’ imprisonment. 

Mr Ian Polson, counsel on fiat, for HKSAR

Mr Trevor Beel, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the defendant