COURT: The jury has convicted you after trial by unanimous verdict on the two charges on the indictment to which you face. You have been found guilty in trafficking dangerous drugs.
In respect of Count 1, you were found guilty of trafficking in 9.33 grammes of a solid containing 7.85 grammes of cocaine and 71 tablets and 11.49 grammes of tablet fragments containing a total of 12.48 grammes of methylenedioxymethamphetamine, which is MDMA. You were also found guilty of trafficking in 5,834 grammes of a crystalline solid containing and a solid containing 5,794 grammes of methamphetamine hydrochloride, 955 grammes of a solid containing 794 grammes of ketamine and 953 grammes of tablets, 288 tablets and 101.3 grammes of tablet fragments containing a total of 457.64 grammes of MDMA.
Defendant, these offences were committed on 9 September 2019 at the building located at No. 19 Hung Kwong Street, To Kwa Wan, Kowloon. The 1st charge relates to the location of a staircase in the building on the 7th floor and the 2nd charge relates to Room F in premises on the 8th floor.
In summary, defendant, the facts as the jury would have found against you was that on 9 September at about 9.22 pm, you, a Nigerian male, was intercepted on the staircase between the 7th and 8th floor of the building carrying a red plastic bag to which contained the drugs as stated in Count 1 and that was in one pellet form and in a plastic bag containing green and purple tablets in the amount as contained in the charge.
Upon arrest and caution for trafficking in dangerous drugs, you admitted that you were bringing the drugs to a person waiting downstairs for $4,000.
In respect of the 2nd charge, defendant, you were brought up to Room F shortly after you were intercepted and a key from your keychain found in your possession opened the door of Room F. On the bed were the drugs as stated in Charge 2 along with other drug paraphernalia such as electric scales, a spoon and Glad transparent plastic bags. You were again arrested and cautioned and you admitted under caution that the room was used for storage of the drugs and that is where you had taken the bag of drugs that were in your possession on the staircase.
You had also made full admissions, expanding on your employment by a person called 7-Eleven, who had employed you to traffic in dangerous drugs.
The plastic bag in Room F containing ‘Ice’ was found with your DNA on it. As I mentioned, you have been found guilty after trial and I shall sentence you on that basis.
You are a Nigerian male, having arrived and come to Hong Kong in 2015. You are a Form 8 holder, which means that you are a recognisance holder. You are applying for asylum or refugee status in Hong Kong and are waiting for your application to be completed. You are 44 years of age and are of clear record.
Mr Bullett tells me that since you have been in custody, your mother has passed away. You have limited education. I will take it that you have been educated up to secondary school and not as you stated in court until the age of 12 and I will take it that you understand English and can speak English.
I am told that prior to your being remanded in custody, you did attend a church in Hong Kong. I do not know what your occupation was in Nigeria, although you did tell the jury you were a preacher who preached at a church.
Mr Bullett has not said much in mitigation but for the fact that you were a good person but went astray.
Defendant, I am sure that your counsel, Mr Bullett, has informed you of this guidelines for trafficking in dangerous drugs in Hong Kong. The amount of drugs you were trafficking in Charge 2 is a very large quantity.
The value of dangerous drugs just in Charge 2 alone amounted to approximately $4.8 million. The value of drugs that you were trafficking in Charge 1 was approximately $16,000.
In this case, defendant, I accept that you were a courier for your boss or your employer called 7-Eleven. I accept that you did all the delivering and supplying of drugs for your boss, 7-Eleven. You were there for only what we call in terms a mule, you were carrying it and delivering drugs for a person who employed you to traffic. I accept that you were not the person who was importing the drugs and I accept that it was 7-Eleven who would pay you to deliver drugs to people. Therefore, you were at the lowest rank of people who trafficked in drugs, a courier.
The courts sentence defendants on the quantity of drugs that the defendants are trafficking in. In this case defendant, you were trafficking in what is called a cocktail of drugs, that is many types of drugs, cocaine, ‘Ecstasy’ or MDMA, ketamine, and ‘Ice’. The most serious drug of all of these drugs is the drug ‘Ice’ and it is clear that there was a very large quantity of ‘Ice’ in Charge 2.
Turning to sentence, in Count 1 defendant, you were trafficking in 7.85 grammes of cocaine and 12.48 grammes of ‘Ecstasy’ or MDMA. The Court of Appeal has laid down guidelines in the case of Lau Tak Ming that for trafficking in heroin of up to 10 grammes of cocaine is a term of imprisonment of between 2 and 5 years. For that amount of cocaine, a sentence of 4 years’ imprisonment would be appropriate.
For MDMA or ‘Ecstasy’, in Hii Siew Cheng ketamine and ‘Ecstasy’ are drugs not to be distinguished from each other for trafficking in drugs. And for the amount of 12.48 grammes of MDMA, that would also attract a term of 4 years’ imprisonment.
Defendant, in sentencing you for these offences, I intend to take the combined approach and then apply the conversion approach. In Charge 1, the more serious drug is cocaine. In converting MDMA to cocaine, that would amount to approximately 7 grammes of cocaine. Adding 7 grammes to the 7.85 grammes of cocaine already in Charge 1, that makes a total of 14 grammes. In sentencing you for 14 grammes of cocaine in Lau Tak Ming, that would attract a sentence of 5 years and 3 months’ imprisonment and that is the term you shall serve for Count 1, 5 years and 3 months’ imprisonment.
Let me turn to Count 2. I shall be converting the drugs of ketamine and MDMA to ‘Ice’ as the more serious drug is ‘Ice’. The leading case for trafficking in large quantities of ‘Ice’ is the case of Abdallah. In Abdallah, the Court of Appeal laid down that for amounts between 4,000 and 15,000 grammes of ‘Ice’, a sentence of between 23 years and 26 years’ imprisonment is appropriate after trial. Therefore, taking the amount of 5,794 grammes of ‘Ice’, that would be a sentence of 26 years and 6 months’ imprisonment.
For the ketamine, there was 794 grammes of ketamine, which in following Hii Siew Cheng, that would be an amount between 600 and 1,000 grammes which would attract a sentence between 12 to 14 years’ imprisonment. For this amount of ketamine, defendant, that would be about a 12 year and 9 months term of imprisonment. In converting that term of imprisonment and that amount of drugs of ketamine to ‘Ice’, that would be approximately 177 grammes of ‘Ice’.
For the MDMA, the total quantity there was 457.64 grammes. In following Hii Siew Cheng, between 300 to 600 grammes, the starting point after trial will be one of 9 to 12 years’ imprisonment. For that amount of MDMA, defendant, I would have sentenced you for 10 years and 6 months’ imprisonment. However, in converting that amount to ‘Ice’, that would be approximately 64 grammes of ‘Ice’. Therefore in taking the total amount of ‘Ice’ it would be 5,794 grammes plus 177 grammes plus 64 grammes which make a total amount of ‘Ice’, if these drugs were all ‘Ice’, to be 6,035 grammes. Defendant, in sentencing you and following the guidelines, that would attract a sentence of 26 years and 6 months’ imprisonment.
Defendant, you are in Hong Kong as a Form 8 holder. That means you are awaiting the decision of your torture claim. You have committed this offence whilst you are permitted to be at liberty in Hong Kong as a torture claimant. This, the Court of Appeal have said, is an aggravating factor. You, defendant, have abused Hong Kong’s hospitality. The commission of this offence has a serious detrimental effect on the community and which tarnishes Hong Kong’s reputation for order and security. In HKSAR v Ali Saif, CACC 309/2017, Macrae VP stated:
“If the courts, in Hong Kong, do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.”
Therefore, the defendant, you being a torture claimant or a non-refoulement applicant is an aggravating factor such that the starting point of sentence will be enhanced to a sentencing point.
Defendant, there was a cocktail of drugs here. Again, that is an aggravating factor. The fact that you are a torture claimant is a clear aggravating factor. Taking those two matters into account, I enhance the starting point in Count 2 by 1 years’ imprisonment. That would mean the total sentence you receive on Count 2 is 27 years and 6 months’ imprisonment.
Defendant, the amount of drugs in Count 1, as I mentioned, was about 14 grammes of cocaine. That is equivalent to approximately 5 grammes of ‘Ice’ and that would not make a difference to the starting point of 26 years and 6 months’ imprisonment.
I therefore order that Count 2, your sentence on Count 2 to run concurrently to Count 1 which means that you shall serve a sentence of 27 years and 6 months’ imprisonment.