HKSAR v. Conte Gaoussou

HCCC 38/2017

[2019] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 38 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Yes, defendant, please stand. The defendant has been convicted of trafficking in a dangerous drug, namely, 931.4 grammes of a solid containing 696.9 grammes of cocaine. The evidence is that the defendant collected a parcel which had been sent from the Philippines to Hong Kong with the dangerous drug inside. Obviously, there has been evidence that the defendant was not the only person involved but he did play a key part in obtaining this parcel. The defendant is aged 32 and is a Form 8 holder. He has a clear record and he has informed this court, and there is no evidence otherwise that he also has a clear record in other countries. There is no mitigation in this case apart from the fact as Mr McGowan had submitted that there was inaction on the part of the customs officers to the defendant’s offer to take part in a controlled delivery.

It was disclosed in evidence that after the arrest of the defendant, whilst the defendant was being taken in the vehicle, the telephone of the defendant rang and the defendant offered to answer the telephone because he told the Customs officer that this would be a call from the person who had asked him to collect the parcel. The Customs Inspector, however, refused to allow him to answer the phone on the basis that he could only answer the phone if he spoke in English. And, obviously, common sense will tell us, as the defendant told the customs inspector that if he spoke in English, the other party would realise that something was wrong. However, this did not persuade the inspector who was in charge of the case at that time and he continued to refuse the offer of the defendant. It is a little disconcerting to this court why the offer was refused because the Customs had nothing to lose. Without the defendant’s assistance, they would not have as far as the evidence disclosed been able to trace this other person who allegedly called the defendant. However, by allowing the defendant to answer the telephone, there may be a chance that this may lead to further arrests, but for that we will never know. So due to the failure of the Customs Inspector, it is only fair that I give recognition to the fact that the defendant did offer, at that time, to take part in the controlled delivery, and, unfortunately, was refused.

There were other leads that the fact is when the defendant originally went to the post office and was refused a delivery of the parcel because he didn’t have the proper documentation, Customs officers were already at the post office, and again, it just I failed to understand why the defendant was not followed to the computer shop, where the defendant waited quite some time for the photocopy document of the passport of the addressee to be sent. And as Mr McGowan pointed out, the CCTV of the computer shop was not obtained till some time later. If it had been obtained earlier, then Customs would have known there was another person involved.

So because of all this, I would have to, therefore, consider an assessed sentence in this way. First of all, according to the sentencing guidelines laid down by the Court of Appeal in the case of Abdallah Anwar Abbas in 2009 [2009] 2 HKLRD 437 for trafficking in cocaine, between 600 grams to 1,200 grams, a reasonable sentence after trial is between 20 to 23 years. I will adopt a starting point of 20 years. As has been recognised, the Court of Appeal also says that the sentence should be enhanced because of the international element, and in this case, of course, the parcel was sent from the Philippines to Hong Kong. So I will enhance the sentence by one year to 21 years.

And then also in the case of the defendant, he is a Form 8 holder. He arrived here, was not allowed entry, and he was given a Form 8 recognizance in order that his claim to asylum be processed. And being given this opportunity to be a guest of the people of Hong Kong, he abused his privilege by committing this present offence. So in those circumstances, the sentence ought to be enhanced by one more year which would give us a starting point of 22 years. However, as I have said earlier, the fact is due to the failure of the Customs officer involved, the defendant was deprived, in some way, of taking part in a controlled delivery, which may have been a mitigating factor for him. So in recognition of that, I will give him a discount of 2 years. So the defendant goes to prison for 20 years. Please sit down.