HKSAR v. Barrow Lamin

CACC 219/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 219 OF 2017

(ON APPEAL FROM DCCC NO 24 OF 2017)

________________________

________________________

Before: Hon Macrae JA in Court

Date of Hearing: 29 November 2017

Date of Judgment: 29 November 2017

________________________

J U D G M E N T

________________________

1.The applicant originally faced two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charges 1 and 3). At Plea Day in the District Court on 2 February 2017, he indicated that he would be pleading not guilty, as a result of which his trial was set down for 21 June 2017.

2.The applicant subsequently appeared for trial in the District Court before HH Judge Dufton (“the judge”).  On the morning of the second day of the trial, the court was informed that the applicant had made an offer to plead guilty to Charge 3, which offer had been accepted by the prosecution. Accordingly, on the same day, he pleaded guilty to Charge 3, as a result of which Charge 1 was left on the court file marked not to be proceeded with without leave of the court.  The total quantity of dangerous drugs in which the applicant was trafficking for sentencing purposes was 4.24 grammes of cocaine narcotic.

3.On 28 June 2017, the applicant was sentenced on his late plea to 2 years and 9 months’ imprisonment.  On 17 July 2017, he filed a Notice of application for leave to appeal against his sentence.  He acts in person in the present application.

The facts

4.The applicant was at all material times the holder of a Form 8 recognizance document issued by the Hong Kong Immigration Department.

5.At 10:15 pm on 10 August 2016, PW1, an undercover police officer carrying out an anti-drugs operation in Lan Kwai Fong in Central, received a telephone call from a male, as a result of which, some two and a half hours later, he went to Chungking Mansion in Tsim Sha Tsui, where he met the applicant at the entrance to the building.  The applicant led PW1 to a guesthouse on the 12^th floor[1] to meet another man.  The applicant, PW1 and the other man then moved to the corridor outside the guesthouse to continue their discussions.  At about 1 am on 11 August 2016, the applicant produced two plastic bags of dangerous drugs from his right trouser pocket and passed them to PW1.  PW1 then paid HK$15,000 to the other man as instructed.  The two packets of dangerous drugs consisted of one bag with 9.79 grammes of a solid containing 3.01 grammes of cocaine, and another bag with 5.61 grammes of powder containing 1.23 grammes of cocaine; thus amounting to a total of 4.24 grammes of cocaine narcotic.

6.The applicant was arrested on 18 August 2016 in Tai Kok Tsui but remained silent after caution.

Mitigation

7.In mitigation, it was submitted that the applicant was 29 years of age at the time of the offence and had a clear record.  He had come to Hong Kong from Gambia and lodged a torture claim.  It was said that he had become involved in drug trafficking after falling under the influence of fellow Gambians, into whose company he had inevitably gravitated.

8.In respect of the appropriate discount to be given for the applicant’s plea of guilty on the second day of trial, defence counsel submitted that the Court in HKSAR v Ngo Van Nam[2] was concerned with the entering of a late plea where there was no change in the prosecution’s position as to the acceptance of pleas; here the position was different because the prosecution had agreed, after the first day of trial had concluded, to accept a plea to one charge rather than both.  It was submitted that, in such circumstances, the judge had a discretion to take into account the change in the prosecution stance as to the acceptance of pleas and afford the applicant a full one-third discount for his plea of guilty.

9.The judge said that the applicant should have made the offer to plead guilty to one offence in exchange for the prosecution not proceeding with the other a lot earlier than the first day of trial.  Furthermore, he pointed out, and defence counsel agreed, that the Court in Ngo Van Nam did not refer to any suggested “change of position” by the prosecution as affecting the practice to be applied.

Reasons for sentence

10.The judge noted that the relevant sentencing guidelines were those set out in R v Lau Tak Ming[3], since cocaine was equated with heroin for sentencing purposes[4]. For the quantity concerned, a starting point of 3 years and 3 months’ imprisonment was adopted.  This he enhanced by 3 months’ imprisonment because the applicant was a Form 8 recognizance holder, who had committed a serious offence affecting the people and reputation of Hong Kong: see HKSAR v Sandagdorj Altankhuyag & another[5]; HKSAR v Norena Gutierrez Cristhian Andres[6].

11.The judge rejected counsel’s submission that the applicant should not be deprived on his full one-third discount and stressed that the court had not been apprised of any discussions with the prosecution concerning the possibility of the applicant pleading guilty before trial.  The applicant’s plea had only been entered on the second day of trial.  Accordingly, he proceeded in accordance with the principles discussed in Ngo Van Nam, giving the applicant a 20% discount and sentencing him to 2 years and 9 months’ imprisonment.

Grounds of appeal

12.In his home-made submissions filed on 21 September 2017, the applicant complains that:

(a) the starting point should not have been enhanced by 3 months’ imprisonment because of his status as a torture claimant;

(b) that in Norena Gutierrez Cristhian Andres,a starting point of 3 years and 6 months’ imprisonment was adopted for 5.41 grammes of cocaine, a larger amount of drug than the present case;

(c) he had not been fully advised of the risks involved in failing to plead guilty earlier and he had not received his case documents in English thus far.

13.He relied on the initial ground of appeal mentioned in defence counsel’s case report to the Legal Aid Department dated 28 June 2017 attached to his home-made submissions: “Although [the applicant] did not indicate an early plea, once a plea bargain was offered by DOJ on day 2 of trial (before trial was started and plea taken) and accepted by [the applicant], the judge was possibly wrong not to afford him the full 1/3 discount”.

Respondent’s submissions

14.Mr Pierre Lui, on behalf of the respondent, submitted that on a strictly arithmetical approach of the guidelines to the quantity of cocaine concerned, the starting point adopted by the judge was entirely correct: the precise figure should have been 3 years and 3.26 months’ imprisonment.[7]

15.It was pointed out that the quantity of cocaine in the present case was slightly less than that in Norena Gutierrez Cristhian Andres, which accounted for the difference in starting points (3 years 3 months’ imprisonment for trafficking in 4.24 grammes in the present case, as against 3 years 6 months’ imprisonment for trafficking in 5.41 grammes in Norena Gutierrez Cristhian Andres).  Furthermore, it was submitted that the enhancement based on the immigration status of the applicant was entirely appropriate and in conformity with authority.  Indeed, the Court had approved of the same enhancement of 3 months’ imprisonment passed by the same judge in Norena Gutierrez Cristhian Andres, in respect of the trafficking of a very similar quantity of cocaine.

16.As for the appropriateness of the discount given, it was submitted that the applicant did not plead guilty on Plea Day and a 7‑day trial was fixed in the court list as a result.  The applicant’s counsel only approached the prosecution to consider the offer at the end of the first day of trial and the court was only informed of the change of plea on the second day.  It was correct, therefore, and in accordance with the practice laid out in Ngo Van Nam for the judge to have given the applicant a reduced discount of 20% for his late plea of guilty.

Consideration

17.Neither the judge’s starting point for the quantity of cocaine concerned, nor the discount of 20% for a plea that was only indicated to the court on the second day of a trial fixed for 7 days, can be criticised.  The judge was faithfully following, as he was required to do, the directions handed down by the Court of Appeal as to the appropriate discounts at various stages of the criminal trial process in the District Court.  As he pointed out, the first time there was any indication of a possible plea of guilty was after the court adjourned on the first day of a trial fixed for 7 days, and the first the court came to know about it was on the second day of trial.  Accordingly, the judge was correct that the appropriate discount for his late plea was, in accordance with Ngo Van Nam, 20%.

18.In respect of the increase in the starting point for the fact that the applicant is a Form 8 recognizance holder, the enhancement could not have been less than that considered appropriate by the judge.  Drug trafficking is an extremely serious offence, even where relatively small quantities are concerned, and it is particularly serious when carried out by a non-refoulement claimant, who is not normally entitled to be on the streets of Hong Kong but is afforded that privilege whilst his claim is being investigated. That he should abuse that privilege by committing a crime such as trafficking in dangerous drugs, which not only significantly impacts on individuals, families and communities in Hong Kong but also severely tarnishes this city’s reputation for order, security and well‑being, calls for a strong deterrent element.  To have any meaning and deterrent effect, the enhancement of 3 months’ imprisonment was the very least that could have been considered for an offence of this nature.

19.As for the claim that the applicant did not fully understand the implications of not pleading guilty at Plea Day, the judge noted in his sentencing remarks when addressing the applicant[8]:

“[Defence counsel] accepts that you were informed of the new sentencing practice and also referred the court to you having signed to acknowledge that you understood that if you maintained a not guilty plea at that stage you would lose the full one-third discount in sentencing as a result.”

20.In my judgment, there are no reasonably arguable grounds of appeal against sentence in this case.  The application for leave to appeal is refused.

21.The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application for leave.

Mr Pierre Lui SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person