HKSAR v. Nacro Joel

HCCC 345/2018

[2019] HKCFI 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 345 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant, on 29 October 2018, you pleaded guilty before a magistrate to a charge of trafficking in dangerous drugs. You admitted that on 11 January 2018, at Block A, Chungking Mansions, Nathan Road in Tsim Sha Tsui, you unlawfully trafficked in 991 grammes of a solid containing 587.20 grammes of cocaine and 5.90 grammes of a powder containing 3.83 grammes of cocaine. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence.

On 11 January, police officers were laying ambush near the 14th Floor, Block A of Chungking Mansions. At about 12 minutes past midnight, they saw you waiting for the lift at the lift lobby on the 14th floor. The police intercepted you. At that time, you were shaking. They conducted a body search on you.

Upon search, they found the drugs as stated in the charge inside your left and right coat pockets. In your left coat pocket was one plastic bag containing 199 grammes of a solid containing 99.2 grammes of cocaine and a further 31 packets or pellets, as I think they are commonly referred to, containing a total of 332 grammes of a solid containing 222 grammes of cocaine and a further three packets containing 5.9 grammes of a powder containing 3.83 grammes of cocaine. That was inside your left coat pocket. Inside your right coat pocket were 27 packets, again commonly referred to I think as pellets, containing 460 grammes of a solid containing 266 grammes of cocaine. Cash of HK$16,600 was found in your right front trousers pocket.

When you were arrested and cautioned at the scene, you said, “I use the drug myself.” Urine test was conducted on you and the result was negative. The total street value of the cocaine seized from you was HK$1,052,726. It is accepted and admitted that at the material time, you possessed all the drugs seized in the present case for the purpose of trafficking.

Defendant, you are 38 years of age and have a clear record in Hong Kong pending the result of a charge of breach of condition of stay. You came from Burkina Faso. You have completed primary school education and live in Tai Kok Tsui whilst you are in Hong Kong.

Mr Keith Hotten, your counsel, has mitigated on your behalf and has urged the court to impose as lenient a sentence as it can particularly with reference to the aggravating factor as enhancement because you are a torture claimant. I am informed that prior to 2015, you were a businessman trading in car parts, jewellery and clothing from -- your business ventures took you to China, of which you would send these goods back to Burkina Faso. However, you would go to China via Hong Kong. In that year, an investor had invested some US$165,000 with you for your trading business. However, you lost this money and, as a result, the person who invested in funding your business then began to threaten your family in Burkina Faso and, hence, you made an application for non‑refoulement.

I am informed that the alleged offence for breach of condition of stay relates to the fact that you continued to trade whilst in Hong Kong being a Form 8 holder. That is why you were charged with a breach of condition of stay. However, that does not make sense to me because you were found to be working as a Form 8 holder. You were not charged with a breach of condition of stay. Nevertheless, I take nothing from that fact that you are awaiting the result for a breach of condition of stay.

You are married and have two children. Your father has passed away and your mother has had a stroke. Mr Hotten tells me that you became involved in this drug-trafficking case as you wanted to send money back to your mother and children.

As you are well, I am sure advised, trafficking in dangerous drugs is a very serious offence. The Court of Appeal has laid down clear guidelines in R v Lau Tak Ming. You were trafficking in a large amount of 591.03 grammes of cocaine. The guideline sentence to be imposed after trial of between 400 and 600 grammes is a sentence of between 15 to 20 years’ imprisonment. Your strongest and only mitigating factor is your early plea of guilty.

Defendant, had you been convicted after trial, I would have taken a starting point of 19 years and 9 months’ imprisonment. You are a torture claimant in Hong Kong, and the Court of Appeal has said on numerous occasions that as a torture claimant in Hong Kong committing such a very serious offence, there should be an enhancement to the starting point as trafficking in Hong Kong has a serious detrimental effect on the community at large and significantly impacts the reputation of Hong Kong and, in short, you have breached the hospitality that Hong Kong has given you.

In the case of HKSAR v Dramane Mouhamed Saiti, the court said that an enhancement of 18 months’ imprisonment for trafficking in 440 grammes of cocaine was appropriate. There is no guideline on enhancements for torture claimants, but the quantity of drugs is a factor to be considered. In sentencing you, I must take into account the totality of sentence. And in considering totality, I consider an enhancement of 15 months’ imprisonment to be appropriate.

In the circumstances, had you been convicted after trial, the sentencing point would be one of 21 years’ imprisonment. Giving you full credit for your plea of guilty and discounting the sentence by one-third, you shall be sentenced to 14 years’ imprisonment.