HKSAR v. Chrilline Christine and Another

HCCC 198/2019

[2021] HKCFI 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 OF 2019

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendants were jointly charged with one count of trafficking in dangerous drugs and tried by a jury.

2.D1 was acquitted.  D2 was convicted and now stands to be sentenced.

Summary of facts

3.On 7 June 2018, Customs and Excise Officers intercepted an incoming air mail parcel posted from Mexico.  The waybill attached to the outside of the parcel was addressed to one “Alpha Sesay”, with the address of “Flat A1, 6/F Mirador Mansion, 56-64 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong”.  The telephone number “+852 5231 9040” was also written on the waybill.

4.Inside the parcel were a number of household and personal items including three boxes each containing a metal thermos flask.  A delivery note was inside the parcel which bore the same particulars as those on the waybill.

5.X-rays revealed suspicious images in each of the thermos flasks and they were examined.  A total of 720 grammes of a crystalline solid comprising 720 grammes of methamphetamine hydrochloride (also known as ‘Ice’), being the dangerous drugs referred to in the indictment, were discovered concealed in the base of the thermos flasks.

6.The parcel and its contents were repacked as they had been when intercepted.  A SpeedPost notification card for collection was placed in the letterbox of the recipient’s address as part of a controlled delivery operation.

7.At about 12:38 pm on 11 June 2018, D1 showed up at the post office with the notification card, handed over an application for a Hong Kong Permanent Identification Card and a photocopy of a passport in the name of Sesay Alpha to collect the parcel.  She told the Customs Officer who was pretending to be a postal staff that she was collecting the parcel for a friend.

8.Upon leaving the post office with the parcel, D1 was immediately arrested. Under caution, D1 said a “black man wearing black and purple stripe top” handed the SpeedPost notification card and the passport copy to her.  She said the black man then walked with her to the vicinity of the post office and she alone entered the post office to make the collection.  The black man said he would wait for her outside the post office around the corner.  D1 said she did not know the name of the black man nor what was inside the parcel.

9.The description of the black man was sent out over the beat radios to the Customs Officers in the operation.  A search of the immediate vicinity of the post office did not yield any result.  A team of about seven to eight officers then walked together as a group to the lift lobby of Mirador Mansion, which is the address of the recipient stated on the parcel, to see if they might find someone of interest.

10.A man matching the description given by D1 was spotted by the Customs Officers at the lift lobby of Mirador Mansion, standing among others who were waiting for the lift.  One of the officers took out his mobile phone to take a photo of the man.  Before he could show it to his team members, the man started to move calmly away from the lift lobby and into the adjoining shopping mall.  A few Customs Officers immediately started to move towards the man.

11.After moving away normally for about one to two meters, the man suddenly started to run and a chase ensued.

12.The man was eventually stopped and arrested outside Golden Crown Court on Nathan Road.  It was never in dispute that this man was D2.

13.D2 was brought inside Golden Crown Court.  Customs Officer searched him and found a total of three mobile phones on D2.  In addition to the three mobile phones, one of the Custom Officers chasing D2 saw D2 throwing down a mobile phone while he was running on Nathan Road.

14.The phone that D2 threw away while he was being chased was an LG brand phone.  In later investigation, a call was found to have been made with this LG phone to the phone of D1 while D1 was making the collection inside the post office.  The call was not answered.

15.CCTV footage from a camera that was located about 150 meters from the post office captured D2 walking alongside D1 towards the direction of the post office about 15 minutes before D1 collected the parcel.

16.The prosecution relied on the skin color, the cap, the upper garment and the build of the person seen in the CCTV footage to ask the jury to make a comparison with three photos taken of D2 on that day and near the time of his arrest.  They say the only reasonable inference to draw from the circumstantial evidence must be that the man walking next to the woman who collected the parcel just minutes later was, in fact, D2.

17.It is the prosecution case that the LG phone call, although unanswered, is a fact to allow the jury to draw the only reasonable inference that D2 was exercising custody and control over the parcel that D1 was collecting and therefore D2 was in possession of the parcel, and that D2 had knowledge of the dangerous drugs inside the parcel.

18.The other piece of evidence that the prosecution relied on to ask the jury to infer that D2 had custody and control over the parcel, as well as knowledge that there was some kind of dangerous drugs inside the parcel was the fact that the phone number written on the waybill and on the delivery note found inside the parcel was the number of one of the three phones (of Nokia brand) found on the person of D2 at the time of his arrest.

19.The prosecution pointed to the presence of D2’s Nokia phone number on the waybill; the quantity, purity and street value of the ‘Ice’ and asked the jury to infer that D2 had arranged for the importation of the drugs into Hong Kong, and that he had intended for the drugs to be supplied to others upon their collection.

20.The jury, by their guilty verdict, found that they were so able to infer and convicted D2 of the count.

Previous conviction

21.D2 is of previously clear record.

Mitigation

22.D2 is a Nigerian national and holder of a Hong Kong Permanent Identity Card upon his marriage to a Hong Kong citizen and satisfying the residence requirements.

23.He was born in 1980 and is now 40 years old.  D2 came to Hong Kong in 2010 and married his wife in Hong Kong the same year, with wedding ceremonies both in Hong Kong and Nigeria.  They have a 9-year-old daughter who is in primary school in Hong Kong.

24.In relation to his employment history, D2 has worked as part-time licensed security guard with various companies, at malls, museum, concerts, Lan Kwai Fong etc.  He also worked as a construction site worker.  He would also buy mobile phones in Hong Kong and ship them to Nigeria to his elder brother to sell.  D2 was earning about $13,000 to $15,000 per month from his security and construction work, and about $10,000 to $15,000 from his mobile phone business. He contributes to his wife about $6-8,000 per month.

25.D2 has two sisters in Nigeria together with his elderly parents, 74 years old father and 72 years old mother.  His mother suffers from cancer while his father has been having leg problems, requiring hospital treatment.  D2 would send some of the money he was making back to support them.

26.Mr McGowan stresses that D2 had a clear record in Hong Kong and Nigeria.  He tells the court that D2 appreciates it is a serious offence and that the court’s hands are really very much tied by the precedents and sentencing guidelines.  Mr McGowan mentioned that D2 is a church member and would help out with church matters.  Lastly, given his family background in Hong Kong and in Nigeria, Mr McGowan asks the court to treat him as leniently as possible.

Sentence

27.The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment[1].

28.Based on the applicable sentencing guidelines[2], I adopt a starting point of 247 months’ imprisonment for the 720 grammes of methamphetamine hydrochloride being trafficked in this case.  This is the result of an arithmetical application of the guidelines.

29.Based on the fact that D2’s Nokia phone number was found on the waybill as well as the delivery note inside the parcel, as well as the circumstances of D2’s commission of the offence, I find that it is the only reasonable inference that D2 was assisting or facilitating the importation of the dangerous drugs in the parcel into Hong Kong.  The presence of this international element in the trafficking is an aggravating factor.

30.Based on the applicable guidelines for when trafficking involves an international element[3], I enhance the starting point by 18 months, leading to a sentence of 265 months’ imprisonment.

31.There are no mitigating factors to warrant a reduction in sentence and D2 is sentenced to 22 years and 2 days’ imprisonment.

Mr John Charles Wright, counsel-on-fiat, for the Respondent

Mr Danny KK Chan, leading Mr Tommy Cheung, instructed by Francis Kong & Co, for the 1^st Defendant

Mr James HM McGowan, instructed by Littlewoods, assigned by Director of Legal Aid, for the 2^nd Defendant