HKSAR v. Nworie Bright Nnanna

DCCC 61/2019

[2019] HKDC 1041

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 61 OF 2019

____________

____________

REASONS FOR SENTENCE

1.The defendant, a Form 8 holder from Nigeria, pleads guilty to one charge of having custody or control of counterfeit currency notes, contrary to section 100 (2) of the Crimes Ordinance[1] and possession of 3.54 grammes of a solid containing 1.26 grammes of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance[2].

2.Full particulars of the offences are set out in the facts admitted by the defendant on 11 July 2019.  In summary on 16 October last year the police intercepted the defendant outside Chungking Mansion, 36-44 Nathan Road in Tsim Sha Tsui. 

3.Upon a body search the police found the defendant was wearing a pair of grey shorts underneath a pair of red shorts. 

4.In the right rear pocket of the grey shorts the police found 41 counterfeit HSBC HK$500 banknotes (charge 1). 

5.In the left rear pocket of the grey shorts the police found two transparent re-sealable plastic bags containing the cocaine.  The estimated street value of the cocaine was $5,214.42 (charge 2).

6.Under caution the defendant said he picked up the counterfeit notes and the cocaine from a rubbish bin in Mirador Mansion.

7.Photographs of the grey shorts; the counterfeit HSBC HK$500 banknotes and the cocaine have been submitted to court.  I have also had the opportunity of looking at the counterfeit banknotes.  

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Marray including that the defendant has a seven years old daughter from a relationship with an Indonesian girlfriend and who now lives in Indonesia with her mother[3].

Having custody or control of counterfeit currency notes

9.Mr Marray submits that the counterfeit currency notes are of poor quality[4].  Having had the opportunity of viewing the counterfeit currency notes I do not agree that they are of such poor quality that they could not be used.  They clearly look like $500 banknotes and some, if not all, could quite easily have been passed off as genuine, for example together with genuine notes.    

10.Although I am satisfied the counterfeit currency notes could quite easily have been passed off as genuine the defendant is charged with possession only.  The defendant is not charged with the more serious offence of intending to either pass or tender the counterfeit currency notes as genuine or deliver to another with the intention that person shall pass or tender the counterfeit currency notes as genuine. 

11.There are no sentencing guidelines for offences contrary to section 100 (2).  Mr Marray refers the court to R v Sze Yung Sang where the Court of Appeal said that the maximum sentence of three years’ imprisonment after trial was appropriate for possession of 368 counterfeit US$100 banknotes[5].

12.Taking into account the applicant pleaded guilty and gave assistance to the authorities the Court of Appeal reduced the sentence to one of 18 months.  In respect of possession of 2 counterfeit US$100 banknotes the court ordered a concurrent sentence of 12 months’ imprisonment. 

13.I have referred the parties to R v Chan Kein Wing where the Court of Appeal held that a sentence of 2 years’ imprisonment after trial was appropriate for possession of 45 counterfeit US$100 banknotes[6].

14.Miss Khubchandani refers the court to HKSAR v 馮仕柏 (Feng Shi Bai), a judgment in Chinese[7]. In summary the court referred to the judgment in HKSAR v Li Ho Yin and accepted that the length of sentence depends on the quantity, value and degree of sophistication of the counterfeit banknotes[8]. The court held that the appropriate sentence after trial for possession of 9 counterfeit HK$500 banknotes was 12 months’ imprisonment[9].

15.Taking into account the quantity and quality of the counterfeit banknotes with the face value of $20,500, I am satisfied a starting point of 1 year and 9 months’ imprisonment is appropriate for possession of 41 counterfeit HSBC HK$500 banknotes.

16.The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security[10].  I am satisfied possession of counterfeit currency notes affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

17.By reason of the defendant’s Form 8 status I enhance the starting point by 3 months to 2 years’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Possession of cocaine

18.The provisions of section 54A of the Dangerous Drugs Ordinance requiring a court to consider a report on the suitability of the defendant for cure and rehabilitation and on the availability of places at addiction treatment centres does not apply, the defendant having been convicted and sentenced to more than 9 months’ imprisonment for having custody or control of counterfeit currency notes.

19.In HKSAR v Mok Cho Tik the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant [11].    

20.Mr Marray submits the quantity of cocaine is not large[12].  Taking into account the quantity of cocaine whilst not large is neither very small and has an estimated street value of $5,214.42, I am satisfied the appropriate starting point for possession of 1.26 grammes of cocaine is 12 months’ imprisonment.

21.The defendant is a persistent offender having previous convictions for possession of drugs in 2015 and 2016[13]. I enhance the starting point by 3 months to 1 year and 3 months’ imprisonment.

22.I am satisfied possession of dangerous drugs affects the community at large and has a significant impact on Hong Kong’s reputation for order and security[14]. 

23.Mr Marray submits that unlike the applicant in HKSAR v Norena Gutierrez Cristhian Andres the defendant is not a trafficker in drugs and has no history of drug trafficking and that any enhancement should be short. 

24.By reason of the defendant’s Form 8 status I enhance the starting point by a further 3 months to 1 year and 6 months’ imprisonment. 

Latent risk

25.Mr Marray submits that there is no latent risk. 

26.As indicated in court I do not accept that the defendant picked up the cocaine and the counterfeit currency notes from a rubbish bin together.  I find inherently improbable that someone would throw away cocaine valued at over $5,000. 

27.Having taken instructions Mr Marray informs the court that the defendant withdraws the mitigation that he picked up the counterfeit currency notes and the cocaine from a rubbish bin and elects not to give evidence in support of the submission that there is no latent risk[15].

28.Although the criminal record shows the defendant to be an abuser of dangerous drugs the result of the urine test taken three days after arrest on admission to Lai Chi Kok shows positive only for amphetamines and cannabis[16]. 

29.The defendant was arrested in the rear lane outside Chungking Mansion at 1755 hours when he was found in possession of the two bags of cocaine[17]. 

30.In the circumstances I am satisfied that there was a risk the cocaine could have fallen into other hands and enhance the starting point by 3 months to 1 year and 9 months’ imprisonment. 

31.Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 2 months’ imprisonment.

Totality

32.The two offences are separate and distinct offences with different criminality for which wholly consecutive sentences are appropriate.  However, having enhanced both sentences by reason of the defendant’s Form 8 status, I reduce the totality by 2 months.

33.I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[18]. 

Administrative detention

34.The defendant was last discharged from prison on 20 August 2016 after which he was detained by the Immigration Department until 31 January 2018[19].  The offences were committed over eight months later on 16 October 2018.

35.Sections 67A (1) and 67A (1A) of the Criminal Procedure Ordinance[20] ( Computation of Sentences of imprisonment) do not apply.  Section 67A (1) applies only where the detention was by order of a court and not administrative detention.  Section 67A (1A) which applies to administrative detention applies only where the administrative detention is immediately prior to the first appearance in court and in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed.   Further the computation of sentence is to be made by the Correctional Services Department and not the court[21].

36.Mr Marray asks the court to exercise its discretion to reduce the sentence by the time spent in administrative detention, in particular the time spent while the defendant was exercising his legal rights to appeal the rejection of his non-refoulment claim [22].

37.In support Mr Marray refers the court to HKSAR v Eftakhar Beg where the court discussed a sentencing court’s discretion to reduce a sentence by reason of administrative detention in order to address any issue of unfairness or injustice[23].

38.The court reviewed a number of cases including HKSAR v Ho Kwok Ho & Another, also cited by Mr Marray[24]. The circumstances the sentence was further reduced in HKSAR v Ho Kwok Ho are very differentand did not involve administrative detention under the Immigration Ordinance. 

39.In view of the length of the administrative detention, over seventeen months, I adjourned sentence for further investigation to be made by the prosecution and defence as to the reason why the defendant was in administrative detention between 20 August 2016 and 31 January 2018.

40.Miss Khubchandani has submitted a chronology of events since the defendant first entered Hong Kong in 2008.  Mr Marray has submitted a letter from the Immigration Department detailing the detention of the defendant since 20 August 2016 and which is consistent with the chronology submitted by Miss Khubchandani.

41.The chronology makes clear the length of the administrative detention is largely due to the defendant’s strong resistance to being removed to his home country.

42.The administrative detention is also unconnected with the present offences which were committed over eight months after the defendant was released from detention on 31 January 2018. 

43.In HKSAR v Godson Ugochukwu Okoro the Court of Appealdeclined to take into account the period of administrative detention which was unconnected to the offence for which the appellant had been sentenced[25].   

44.This approach can also be seen in Magistracy appeals heard since HKSAR v Eftakhar Beg[26]. The only occasion there has been reduction in sentence for administrative detention is where that detention was connected to the offence for which the appellant had been sentenced[27].

45.The present offences being unconnected to the administrative detention and the length of that detention being largely due to the defendant’s strong resistance to being removed to his home country, I am satisfied notwithstanding the long period of that detention, that there should be no further reduction in sentence[28].

Sentence

46.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 4 months’ imprisonment;

Charge 2 – 1 year and 2 months’ imprisonment with 12 months consecutive and 2 months concurrent to charge 1;

The total sentence to be served by the defendant is 2 years and 4 months’ imprisonment.