COURT: The defendant faces two charges, the first being trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, the second is a charge of conspiracy to traffic in dangerous drugs, contrary to section 4(1)(a) and (3) of the same ordinance, together with section 159A and 159C of the Crimes Ordinance. He has been in remand since 31 December 2020.
The defendant originally pleaded not guilty to both charges, and came before me for trial on 3 August 2023 which was set down for 10 days. He initially disputed the admissibility of one of his two video-recorded interviews and records of WhatsApp messages retrieved from his mobile phones, but decided later on to abandon his objection to the WhatsApp records, upon my ruling admitting the challenged video-recorded interview after a two-day voir dire proceedings. On day three, right before the empanelment of jury, the defendant sought time to reconsider his plea. I am told that he had intimated that intention of his right after my ruling on the voir dire on Friday last, that is day two of the trial.
The case was thus adjourned to yesterday, whereupon the defendant pleaded guilty to the trafficking charge in return for the prosecution not proceeding with the conspiracy charge, subject of Count 2. Upon the defendant’s plea to the trafficking count, and his admission to the Summary of Facts pertaining to that count, I formally convicted him of that count and on the prosecution’s application, ordered Count 2, the conspiracy charge, to remain on the court’s file and not to be proceeded with without court’s leave.
Facts of the Case
The facts pertaining to Count 1, as agreed by the defendant, are as follows: At around 5 pm on 30 December 2020, the defendant and another person were seen by police officers to be moving two carton boxes to a back alley of Kweilin Street near Kin Sun Building in Sham Shui Po. The police approached the defendant, who was then opening one of the carton boxes. He started to run away, and the police finally intercepted him outside a public toilet at No. 75 Yen Chow Street. He was later arrested and cautioned.
In the two carton boxes, the police found various items mostly electronic appliances and a total of 45 packets of crystalline solid hidden therein.
Upon analysis, the crystalline solid held in the packets weighed a total of 10.995 kilogrammes, containing 10.86 kilogrammes of methamphetamine hydrochloride - commonly known as ‘Ice’. The street value was estimated to be around HK$6.8 million.
By agreeing to the Summary of Facts, the defendant now admits that he was in possession of the quantity of dangerous drugs in question for the purpose of unlawful trafficking.
The Defendant’s Background
He is 37 years old, a Ugandan national and is a Form 8 holder in Hong Kong. Whilst he was born in Uganda, he used to live with his sister in Nigeria where, I am told, he was shot in the arm and attacked by the opposite side in a property dispute.
Upon his arrival in Hong Kong in 2017, he was held in administrative detention for a period of 8 months before his release on recognisance as a Form 8 holder. He was married to a domestic helper in September 2020 and not being allowed work, he was unemployed at the time of the arrest.
He did not have any previous criminal conviction in Hong Kong.
Mitigation
Realistically, it was accepted by Mr Raffell that there is not much that can be said in mitigation on behalf of the defendant. In accordance with the principles expounded in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, Mr Raffell urged me to exercise my discretion to allow an appropriate discount for the late plea entered after a voir dire but before a jury is empanelled.
The court is also urged to take into consideration the defendant’s role in the offence, as reflected in the Summary of Facts, that he was an ordinary courier and “played no other, more serious, role”.
There is a further point made by Mr Raffell in mitigation. He asks the court to take into account the 8-month administrative detention period upon the defendant’s arrival in Hong Kong which, although unrelated to the present case, it is said, can be taken into account to reduce the defendant’s sentence. Mr Raffell suggests that the court may take into account that factor when deciding how long should be added to the sentence for the aggravating feature that the accused is a Form 8 holder. This is a point that merits closer scrutiny, hence I invited further submissions from Mr Raffell with reference to any applicable case authorities. The court has since received further submissions and cases which I have duly considered and as I shall elaborate below.
Sentence
Trafficking in dangerous drugs is a serious offence, particularly so for cases involving large quantities of hard drugs such as ‘Ice’. Upon conviction on indictment, the maximum sentence for the offence is life imprisonment and a fine of HK$5 million. The policy underlying the approach to sentence for trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs including ‘Ice’, the subject of the charge in the present case.
The appropriate tariffs for ‘Ice’ are derived from the Court of Appeal’s decision in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which stipulates that the tariffs laid down in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 for heroin of 600 grammes or over are also applicable to the same quantity of ‘Ice’.
According to the applicable sentencing tariffs, a quantity between 4,000 and 15,000 grammes of ‘Ice’ would attract a starting point for sentence in the range of between 26 and 30 years.
From a pure mathematical calculation, given the quantity of ‘Ice’ seized in the present case, namely, 10.86 kilogrammes, the appropriate starting point is one of 28 years and 6 months.
Whilst I accept that the defendant’s participation was merely as a courier and not a more serious role, as the Court of Appeal in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 at paragraph 146:
“...it is clear that on the present state of the law, a judge cannot depart from an arithmetically arrived at starting point to allow for the fact that the role of the offender in the drug trafficking was only that of a courier...such a starting point is appropriate for couriers as it already takes account of their low level of involvement in the commission of the drug trafficking offence. A higher level of involvement in the offence will justify an upwards adjustment of the starting point.”
There is hence no justification on the facts of this case to adopt a lower than the arithmetically arrived at starting point of 28 years and 6 months’ imprisonment.
Aggravating Factor
On the other hand, it is fairly accepted by Mr Raffell that the defendant’s commission of the present offence in his capacity as a Form 8 holder is an aggravating feature in itself. Indeed, in cases involving trafficking of dangerous drugs, the sentence should be enhanced by no less than 6 months (see HKSAR v Ali Saif [2018] HKCA 358).
As a matter of principle, the Court of Appeal in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 made it clear that:
“The enhancement of the sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and Hong Kong’s reputation for law and order, the greater the enhancement”.
In HKSAR v Mohammed Imran [2019] HKCA 719, the applicant in that case trafficked in 132 grammes of cocaine and the Court of Appeal upheld a 12-month enhancement in respect of the
applicant’s status as a Form 8 holder, taking into account the substantial amount of cocaine, the role of the applicant there being also a courier, as well as prevalence of drug offences in Hong Kong.
Clearly, the considerations in Mohammed Imran are applicable in the present case, and it is beyond doubt that the amount of drugs in the present case, namely, 10.85 kilogrammes of drugs ‘Ice’, far exceeds those in Mohammed Imran which involved only 132 grammes of cocaine.
That said, I have also considered other cases that illustrate how judges supplied the principles involving Form 8 holders, including cases heard in the First Instance such as HKSAR v Pangosban Nellie Alisangco (unreported, [2023] HKCFI 2025) where the Court of First Instance enhanced a Form 8 holder defendant sentenced by 6 months, on top of the notional starting point of 26 years and 4 months’ imprisonment arising from an offence of trafficking involving 4.924 kilogrammes of ‘Ice’. In reaching such conclusion, Deputy High Court Judge Yau in that case took into account the already very lengthy sentence that the defendant in that case was facing, as well as the principle of totality.
Bearing in mind that the present case shares the same tariff band with the case that I have mentioned, Pangosban, which indicates a very large quantity of ‘Ice’ is involved, this court is also mindful of the overall length of sentence to be imposed on the defendant, particularly when the quantity of ‘Ice’ involved in this case far exceeds those in Pangosban’s case.
Considering all relevant factors, I find that an appropriate level of enhancement in the circumstances of the present case would be one of 8 months, taking the notional starting point up to a sentence of 29 years and 2 months, being 350 months in total.
Mitigating Factors
Guilty Plea
I turn now to the mitigating factors which this court is asked to consider. First, discount for guilty plea.
The defendant pleaded guilty after the voir dire proceedings but before empanelment of the jury. He is therefore, as
Mr Raffell rightly accepted, not entitled to the full one-third discount. As held in Ngo Van Nam, the discount afforded to the defendant would at most be 20 per cent, save for exceptional circumstances.
Having taken into account what the law has set out in Ngo Van Nam, as well as other cases in which the law was applied in similar circumstances, including HKSAR v John Wilmer Gonzalez Pineda [2018] HKCA 405, HKSAR v Shek Hing Ying [2019] HKCFI 1366 and HKSAR v Wong Kam Yan [2018] HKCFI 2797.
I will exercise my discretion and allow 20 per cent discount for the late plea in the circumstances of the present case, that represents the high watermark of which I am allowed to allow in the circumstances.
Defendant’s Administrative Detention
I turn next to the question of administrative detention, namely whether any discount should be given for the period of 8 months’ administrative detention that the defendant had undergone upon arrival in Hong Kong which was wholly unrelated to the present case.
In relation to this specific issue, the authorities speak in unison that whilst it is established that the court has a discretion to take that period of unconnected administrative detention into account in deciding on the ultimate sentence to be imposed, the circumstances under which the discretion can properly be exercised are rather circumscribed. The main considerations are the dual requirement of nexus and proximity, as well as the question of overall fairness (see HKSAR v Eftakhar Beg [2015] 5 HKC 427, judgment of Zervos J (as he then was) and HKSAR v Iqbal Zahid [2018] HKCFI 821, judgment of Remedios J and the line of authorities referred to at paragraph 31 therein).
In the circumstances, appealing as Mr Raffell’s submissions may seem, I do not find sufficient basis in the present case (in terms of both nexus and proximity, as well as on an overall fairness scrutiny) for the exercise of my discretion to discount his sentence on ground of the period of administrative detention to which the accused had been subjected.
In the premises, I could not find any further mitigating factors that warrant further reduction in the sentence.
Final Sentence
The final sentence that I would thus impose on the defendant upon discount for the plea is thus one of 23 years and 4 months’ imprisonment. That is 280 months. So, defendant, I impose a sentence of 23 years and 4 months’ imprisonment on you.