HKSAR v. Godson Ugochukwu Okoro

CACC 222/2015

[2018] HKCA 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 222 OF 2015

(ON APPEAL FROM HCCC 525 OF 2014)

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REASONS FOR JUDGMENT

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1.The applicant was charged with trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The Particulars of Offence alleged that on 13 August 2014 at Mongkok the applicant unlawfully trafficked in 249 grammes of a solid containing 107 grammes of cocaine.

2.The applicant appeared before Deputy High Court Judge Campbell-Moffat (as she then was) (“the judge”) on 18 June 2015 and after pleading guilty to this offence was sentenced by the judge to 6 years and 4 months’ imprisonment. 

3.The applicant subsequently applied for leave to appeal against his sentence and at the hearing of his application on 27 February 2018 I allowed it but failed to address one of the applicant’s grounds of appeal.  At the hearing on 12 March 2018 I granted leave on the remaining ground of appeal.  These are my Reasons for Judgment on the applicant’s leave application.

The background to the offence

4.At about 22:30 hours on 13 August 2014 the applicant was seen by police officers outside Foon Shing Building, 732 Nathan Road, walking along Nathan Road in the direction of Prince Edward.  He was intercepted by the police officers and searched.  He was found to be wearing two pairs of underpants and inside them there was a bunch of tissue paper wrapped around a condom.  Inside the condom were 14 pellets containing the dangerous drugs the subject of the charge. 

5.The applicant was taken back to Mongkok Police Station and three mobile phones were seized from him. In a subsequently conducted video record of interview under caution the applicant said that he collected the dangerous drugs on the instruction of a Chinese male whom he called “Hassan”.  He claimed he was delivering the drug to Hassan for a reward when he was arrested by the police. 

6.The market retail value of the drugs was estimated to be HK$255,723.

The applicant’s mitigation

7.At his sentencing hearing the applicant was represented by Mr Robert JH Tibbo.  Mr Tibbo said that the applicant claimed that he had been entrapped and that he had committed the offence at the request of another who was acting as a police agent.  He asserted that had the applicant not been requested by this police agent to deliver the drugs he would never have done so. 

8.After referring the judge to the sentencing tariff cases of R v Lau Tak Ming[1] and HKSAR v Abdallah[2] Mr Tibbo suggested to the judge that in the circumstances a starting point of 10 years’ imprisonment was appropriate. 

9.Mr Tibbo also referred the judge to the fact that his client had suffered injury in the course of his arrest as the applicant maintained that he was unaware that the persons intercepting him were police officers.  As a consequence of the injury suffered at this time the applicant had been left with some permanent scarring on his left leg.  Mr Tibbo asked the court to take this into account in sentencing the applicant.

10.The applicant did have a prior conviction for offering to do an act preparatory to trafficking in dangerous drug, contrary to section 4(1)(c) of the Dangerous Drugs Ordinance, Cap 134 to which he had been sentenced to 2 years’ imprisonment on 20 May 2011.   

The judge’s Reasons for Sentence

11.After setting out the facts of the case the judge referred to the assertion made by Mr Tibbo that the applicant was entitled to a discount of his sentence by reason of entrapment.  In response to this and the claim that the applicant had suffered injuries at the time his arrest the judge said[3]:

“On your behalf, counsel has urged upon me to consider all the circumstances surrounding your arrest, interview and subsequent behaviour. He says on your behalf that you have been co-operative from the beginning and that you are remorseful. He also suggests that you find yourself in this position because you were set up by others and that, but for that entrapment, you would not have committed this offence.

Considering your previous conviction for doing an act preparatory to trafficking in dangerous drugs, for which you received a term of imprisonment from the District Court and considering the fact that you had upon you the mobile phones, SIM cards and batteries referred to earlier, I do not believe that to be the case.

Lastly he asked me to take into account the injuries you received upon arrest. If I am to do that, I must also take into consideration the fact that you resisted arrest and that you had to be subdued by the police. It would seem that you brought those injuries upon yourself. If that is not the case, then any future CAPO claim that you make will deal with the matter. In any event, to do my best to be fair to you, I will not consider your behaviour on arrest, and I will sentence on the basis of the facts as agreed between prosecution and defence counsel.”

12.The judge then referred to the Lau Tak Ming sentencing guideline and adopted a starting point of 9 years 6 months’ imprisonment.  Discounting that by one third she arrived at the sentence of 6 years 4 months’ imprisonment which she thereupon imposed upon the applicant. 

The grounds of appeal

13.The applicant was legally unrepresented but said that he would rely upon a document entitled “Initial Grounds of Appeal” which appears to be a draft Perfected Grounds of Appeal prepared by Mr Tibbo.  The applicant also relied on the contents of letters he had written to the court. 

14.One of the grounds of appeal argues that the sentencing guidelines adopted by the Hong Kong Courts in respect of drug offences are unconstitutional.  The applicant has maintained that he intends to argue and rely upon this ground of appeal but is not of course able, himself, to argue it.  The respondent has filed detailed submissions on this ground.  I was satisfied that the ground meets the threshold of being reasonably arguable. 

15.As this ground raises important and complex issues I had to consider whether or not I should grant the applicant legal aid so that both he and the Court of Appeal could receive proper assistance at the hearing of this ground. 

16.Without legal representation the applicant could not properly advance this ground and the task of the Court of Appeal in addressing it would be made unnecessarily difficult.  For these reasons I granted the applicant an Appeal Aid Certificate.  The Director may wish to consider whether the constitutional challenge to Hong Kong’s sentencing guidelines for drug trafficking offences merits the briefing of Senior Counsel.

17.The applicant also referred to other matters that he wishes to rely upon which are set out in his letters to the court.  I am persuaded that I should grant him leave to appeal in respect of those other matters.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person