HKSAR v. Darboe Lansana and Another

HCMA 153/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 153 OF 2017

(ON APPEAL FROM WKCC NO. 263 OF 2017)

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Reasons for Judgment

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1.The 2 Appellants were each charged with one charge of Trafficking in a dangerous drug and jointly charged with another like charge. The 1^st Appellant pleaded guilty to Charges 1 and 2, and is sentenced to 18 months’ imprisonment for each charge, and 8 months’ imprisonment of charge 2 was ordered to run consecutively. Likewise for D2, he is sentenced to 18 months imprisonment for each of charges 2 and 3, with 8 months of charge 2 to run consecutively. Their appeal against sentence has been dismissed. These are the reasons.

2.Charge 1 involved 0.35 grammes of a powder containing 0.26 grammes of cocaine, charge 2 involved 0.18 grammes of a powder containing 0.12 grammes of cocaine, and 0.48 grammes of a powder containing 0.32 grammes of cocaine was involved in charge 3.

3.On the first occasion the 1^st Appellant sold dangerous drug at $1,000 a police decoy officer on 28 April 2016.  On 11 May 2016, the two appellants jointly sold the drugs to the same decoy, whilst the 2^nd Appellant alone sold drugs to the same decoy officer on 31 May 2016.

4.The Magistrate adopted 24 months as the starting point for each of the offences, and taking into account that the indication of guilty pleas was not tendered until after the case had been set down for trial, declined to give the full one-third discount, and only reduced sentence by 6 months on each charge.

Grounds of Appeal

5.There is only one ground of appeal, namely, that the Appellant’s sentences are manifestly excessive by reference to comparable Magistracies cases where a lower starting point had been adopted.

RESPONDENT’S REPLY

6.Mr Sean, for the respondent, submitted that whilst sentencing tariffs for drug cases are not straightjackets and the sentencing courts retain certain degree of flexibility, the fact that other defendants in other cases received lighter sentences should have no bearing on the present appeal.  The ultimate question is whether the sentences imposed by the magistrate in the present case with the facts as they are, were manifestly excessive.  Mr Sean submitted that the sentences imposed were in line with R v Lau Tak Ming [1990] 2HKLR 370.

Discussion

7.It was submitted on behalf of the Appellants that the 2 years starting point adopted by the Magistrate on each charge was too high in view of the relatively small amount of drugs involved, and that although the tariff is 2 to 5 years for up to 10 grammes of cocaine, it is wrong in principle to take 2 years as a starting point no matter how small the amount of drugs involved.

8.Apart from the case of Lau Tak Ming, all the others so-called “authorities” relied on by Mr Ross for the Appellants are “list of case results prepared by Duty Lawyer Service” , “list of case results prepared by Legal Aid Department” and “Particulars of offence and sentences” of various Magistracies cases which he submitted, also involved Gambians in “virtually identical circumstances”.

9.Mr Ross also argued that in the present case the 2 Appellants had trafficked in a total of 0.38 and 0.44 grammes of cocaine respectively, and other Magistracies cases involving similar amounts resulted in much lower sentences.

10.Those cases are of no value in this appeal and I did not peruse any single one of them. It is pointless to compare cases where larger quantities were involved but resulted in lower sentences, HKSAR v Mohaned Abubakar Nazir, CACC 318/2007; or cases where other Defendants have received greater degree of leniency than is indicated by the guidelines in Lau Tak Ming, HKSAR v Bunloun Jantakarn, CACC 397/2007.  In the latter, Hon Stuart-Moore VP said:

“25. …This being said, an obvious mistake was made in each case…

28… The fact that fundamental errors were made in other similar cases provides no reason at all for reducing these sentences.  There is a well-known saying that ‘two wrongs do not make a right’ and it is one which has long been applied in the courts when confronted with situations of this kind.  This is just another way of saying that where a perfectly correct sentence has been imposed, the Court of Appeal will not reduce it merely because someone else, in a similar situation in another case, has received an inappropriately light sentence.  That would be to reduce the correct level of sentence to a level which does not conform with the guidelines in Lau Tak Ming.”

11.I see no reason to water-down or redefine the guidelines as set out in Lau Tak Ming. Further, the submission on the total weight of narcotics in respect of each Appellant is misconceived.  Each of them was involved in two wholly separate and distinct offences of trafficking, unlike circumstances where drugs were found on a defendant’s person, and within a close proximity of time and distance further drugs were found in his residence. It would be correct in the latter circumstances to add up the two amounts of narcotics for the purpose of adopting a starting point.

12.Saw J, in HKSAR v Au Kwok Chai, HCMA 410/2008, whilst dealing with a case of similar nature, approved of a 2 year starting point for each charge and wholly consecutive sentences.

13.What other trial judges/Magistrates have imposed on other defendants in totally unrelated cases is of no relevance to the present appeal.  What the Appellants have to demonstrate is that there had been an error in respect of the sentence imposed on them, which they have failed.

14.I am satisfied that the sentence imposed on each of the Appellant is neither manifestly excessive nor wrong in principle.  The appeal is hereby dismissed.

Mr Eddie Sean, SADPP, of the Department of Justice, for the respondent

Mr Philip Geoffrey Ross, Counsel instructed by Director of Legal Aid, for the 1^st & 2^nd Appellants