HKSAR v. Nacro Joel

CACC 60/2019

[2019] HKCA 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 60 OF 2019

(ON APPEAL FROM HCCC NO 345 OF 2018)

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J U D G M E N T

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1.On 4 February 2019, following his plea of guilty to a single count of trafficking in a dangerous drug, namely 991 grammes of a solid containing 587.20 grammes of cocaine and 5.90 grammes of a powder containing 3.83 grammes of cocaine, the applicant was sentenced by D’Almanda Remedios J (the judge) to 14 years’ imprisonment. On 12 March 2019, the judge granted an application by the prosecution for the forfeiture of $16,600 cash that was found on the applicant at the time of the offence.

2.The applicant filed a notice of application for leave to appeal against his sentence on 22 February 2019, which was followed by a further notice of application for leave to appeal against his sentence in respect of the forfeiture order on 8 April 2019.

3.When the applicant pleaded guilty to this offence he agreed a summary of facts admitting to trafficking in the quantity of cocaine as particularised in the count.  Sometime after midnight on 11 January 2018, the applicant was intercepted by police officers in the lift lobby on the 14^th floor of Chungking Mansion because he was behaving suspiciously.  The police officers searched him and found the drugs wrapped in 61 packets in the left and right pockets of his coat.  They also found in the right front pocket of his trousers the sum of $16,600 cash.  Upon being cautioned, he said “I use the drug myself”, but a subsequent urine test resulted in a negative finding for drugs. The street value of the cocaine at the time of the offence was $1,052,726. 

4.The applicant is a national of Burkina Faso in West Africa.  He is 38 years of age and is separated from his wife with whom he has two daughters.  He describes himself as a businessman who lost US $165,000 in a failed business venture.  He claims that the person who lent him the money made threats to him and his family, and as a consequence he came to Hong Kong to seek asylum about 4 years ago.  He is a non-refoulement claimant and a Form 8 recognizance holder.  He claims that he became involved in the present offence so that he could make some money to send to his family.  He also claims that the cash found on him was unrelated to his drug dealing, and it was suggested in mitigation that it related to his trading business in “jewellery, clothes and so on”. 

5.The judge adopted a starting point of 19 years and 9 months’ imprisonment for the quantity of cocaine narcotic which was in accordance with the sentencing guidelines: R v Lau Tak-ming [1990] 2 HKLR 370.  She enhanced the starting point by 15 months to 21 years’ imprisonment for the fact that the applicant was a Form 8 recognizance holder at the time of the offence.  The enhancement was also in accordance with relevant sentencing principles: HKSAR v Ali Saif [2018] 6 HKC 19.  The overall starting point of 21 years’ imprisonment was reduced by one third for the applicant’s guilty plea to 14 years’ imprisonment.

6.The applicant complains that both the starting point adopted by the judge and the enhancement of 15 months’ imprisonment were excessive.  He further complains that a greater discount should have been given to him for his plea of guilty and that the resultant sentence of 14 years’ imprisonment was harsh and excessive.  He refers to other cases, without providing particulars, that he claims were similar to his case where the defendants were treated more leniently.  It has been said time and again by this Court that no two cases are alike and there is little, if any, utility in comparing the sentences imposed in other cases.  The sentencing of an offender is not an exercise of comparing sentences, but one of applying the relevant sentencing principles to the circumstances of the offence and the offender in order to pass a just and fair sentence.

7.The judge’s approach in sentencing the applicant and the resultant sentence that she imposed on him cannot be faulted.  The grounds of appeal against sentence are not reasonably arguable and leave is therefore refused.

8.The prosecution applied for an order for the forfeiture of the $16,600 cash found on the applicant at the time of the offence.  The applicant contested the prosecution’s application and a formal hearing was convened by the judge to deal with it. The judge, having had presented to her evidence and submissions in relation to this issue, granted the prosecution’s application and ordered that the money be forfeited. The applicant claimed that the money did not belong to him but to a person by the name of “Nett” who sent the cash to him from Africa to pay sellers of shoes which “Nett” had ordered for his business.  The judge disbelieved the applicant and rejected his claim that the money was to be used for trading in shoes.  She noted that the applicant was a torture claimant who was found in the early morning with this sum of money in his pocket together with an extremely large amount of drugs with a street value of $1,052,726.  The drugs were also packaged in packets for sale or supply.

9.The applicant complains that the prosecution initially agreed that the money should be returned to him but changed its position because of strong comments from the judge.  It is the case that initially the prosecution did not seek the forfeiture of the money but after discussion with the judge a formal application was made.  This is not a basis on which to contend that the forfeiture order was wrong in law.  He further complains that there was no evidence to connect the money to the offence of drug trafficking and there have been other cases where money found in possession of defendants in drug trafficking cases had been returned to them.  There was clear evidence connecting the money to his drug trafficking activities which the judge explained in her ruling.  The vague reference to other cases where money is found in the possession of defendants in drug trafficking cases that had been returned to them, if that has occurred, is of no relevance.  It will depend on the particular circumstances of the case under consideration.  I am of the view that these grounds are not reasonably arguable and leave to appeal the forfeiture order is accordingly refused.

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

Ms Jasmine Ching, SPP of the Department of Justice, for the respondent

The applicant appeared in person