On 19 August 2019, the defendant was intercepted by the police at Walker Road, Hung Hom. He then took the police to Room A, Flat B, 5th Floor, Wai Lee Building, 71-73 Station Lane, Hung Hom, a room to which he was a tenant. Inside the room, the police found two plastic bags containing ‘Ice’ in the quantity as stated in the indictment.
The ‘Ice’ in question had a street value of slightly more than HK$2.8 million.
The defendant is a 38-year-old Nigerian international. He is married with two children aged 10 and 8 years old. In 2016, he came alone to Hong Kong to seek asylum on the basis that his life was threatened in Nigeria by Boko Haram. His family remained in Nigeria.
The law relating to the sentencing of drug trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.
The first step when approaching sentence for an offence of trafficking in a dangerous drug is for the judge to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. In respect of the quantity of ‘Ice’ in which the defendant trafficked, the relevant decision is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
In Tam Yi Chun at paragraph 34, subparagraph (5), the Court of Appeal held that in trafficking cases involving more than 600 grammes of ‘Ice’, the sentencing guideline laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 would apply. Applying the Abdallah guidelines, the appropriate sentencing band for quantities of 4,000 grammes to 15,000 grammes of ‘Ice’ would be 26 to 30 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. In the present case, the 6-odd kilogrammes of ‘Ice’ would appear to be stored in the defendant’s premises. There is no evidence placed before me to distinguish this defendant from other storekeepers. I therefore assess his culpability and role at the same level as any other storekeeper.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. In respect of this defendant, trafficking in 6,061 grammes of ‘Ice’, a mathematically calculated place within the sentencing band, as already mentioned, would be 26 years and 8 months’ imprisonment after rounding down.
Taking into account the defendant’s role and culpability and the weight of the ‘Ice’ in which he trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 26 years and 8 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. The defendant was previously convicted for breaching his condition of stay in 2016 and sentenced to 2 weeks’ imprisonment suspended for 3 years. However, in view of the fact that this offence is wholly unconnected to the defendant’s current trafficking conviction and that it was a relatively minor offence, I have not taken this into account when considering the appropriate sentence for this case.
It is an admitted fact in this case that the defendant is a Form 8 holder who was in receipt of HK$3,200 every month from international Social Security. As stated by the Court of Appeal in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 at paragraph 30, if Form 8 holders abuse their licence to stay in Hong Kong by engaging in serious criminal activities aimed at the very community which has granted them privilege, this is a factor aggravating the seriousness of the crime.
In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, the Court of Appeal stressed at paragraph 43 of the judgment that the amount of the enhancement should:
“...reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong.”
Trafficking in ‘Ice’, particularly in the volume trafficked in this case, seriously affects the community of Hong Kong at large and has an obvious and significant impact on the reputation of this city.
Following the further guidance in HKSAR v Mahabul Alam Khan, CACC 116/2016, I find that the defendant’s sentence should be enhanced by 18 months to reflect this aggravating factor. This brings me to a notional sentence after trial of 28 years and 2 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in the judgment of Yusuph at paragraph 44 that:
“Given the appalling consequences which the proliferation of dangerous, particularly addictive, drugs have on families, communities, the workplace, indeed, on the whole fabric and functioning of society, the reasons for a defendant’s involvement in the crime and his personal circumstances are of far less importance than society’s duty to protect its citizens and the courts’ paramount function of ‘denunciation, deterrence and punishment’ of those who would seek to traffic in dangerous drugs.”
In light of the aforesaid principle, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of this fifth step.
In the circumstances of the present case, no other additional considerations are relevant insofar as the sixth step is concerned. I sentence you to a term of 28 years and 2 months’ imprisonment.