HKSAR v. Njie Ebou

DCCC 466/2022

[2024] HKDC 208

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant is found guilty after trial of one count of trafficking in dangerous drug, namely a packet of 24.6 grammes of a solid containing 6.84 grammes of cocaine.

The Facts

2.The facts can be briefly stated as follows. At around 9:29 p.m. on 24 January 2022, the Defendant was spotted by PC 24280 who was patrolling in uniform along Des Voeux Road West.  The Defendant was about to turn into Sutherland Street. Once Defendant saw the officer, he accelerated.

3.Feeling suspicious, PC 24280 told the Defendant in English to stop.  But instead of doing what he was told, Defendant began running. That was followed by a long chase, in the course of which the Defendant, whilst running up on Wo Fung Street, stumbled and fell near a red private car parked on one side of the road.  Whilst he was rolling on the ground, the Defendant threw the aforesaid packet of dangerous drug at or near the rear nearside wheel of the car.  After the Defendant was eventually stopped by the officer at Queens Road West near Queen Street, he was brought back to the car where he was shown the packet of drug.  Upon being taxed with it, the Defendant denied that it was his and retorted by asking if the officer had any CCTV record to show that it was.

The Defendant’s Background

4.The Defendant was born in Gambia on 2 January 1988.  He completed his secondary education back in his home country.  He came to HK in November 2014 and thereafter filed a non-refoulment claim.  There is nothing before me to show on what the Defendant has been living all these years.  Nor have I been told by the Defence in mitigation what he has been doing during that time.

5.According to the antecedent statement, the Defendant is said to be single.  But I have now been told that he has had a 5 months’ old child who I believe is taken care of by her biological mother.  How that is done and on whose support, again, I have not been told.

6.What is clear is that in March 2017, the Defendant was convicted of trafficking in dangerous drugs, for which he was sentenced to a term of 48 weeks’ imprisonment.

Sentencing Principles

7.In coming to my view on the sentence to be passed in the present case, I have borne in mind the principles discussed in HKSAR v Henry Jane Yusuph [2021] 1 HKLRD 290.  The first step, according to the above judgment, is to identify the guideline band.  This poses no difficulty as we are only concerned with one kind of drug: cocaine.  Based on the guideline set out in HKSAR v Lau Tak Ming & others [1990] 2 HKLR 370 which was set for heroin but made applicable also to cocaine (see AG v Pedro Nel Rojas [1994] 1 HKC 342), trafficking in anything up to 10 grammes of cocaine would have attracted a starting point between 2-5 years’ imprisonment.

8.With 6.84 grammes of cocaine, I am of the view that 4 years is a proper choice as a notional starting point.

9.In relation to the Defendant’s role, there is nothing before me to show that the Defendant had played any role other than that of a courier, which is the generally regarded as the lowest in the hierarchy of drug trafficking.

10.I shall next look at the question of aggravating factors.  In relation to the Defendant’s previous conviction for drug trafficking, the question is whether the court should regard that as evidence of recidivism and increase the starting point in view of that.  Having considered it, I have come to the decision that it may not be warranted.  After all, the Defendant has only had this one similar conviction, and it was close to 7 years old.

11.However, apart from that, there is one other aggravating factor, which is that the Defendant was (and I believe still is)  a non-refoulement claimant.  It is well-established that for such a person to commit a serious offence in Hong Kong when he is being allowed to stay at the hospitality of the people, the court is required to consider enhancing the starting point: HKSAR v Sandagdorj Altankhuyag & Anor. [2014] 1 HKC 206.  On this basis, I shall increase it from 4 years to 4½ years.

12.Moving thus to the last step: is there any mitigating factor which I should take into account?  The Defendant having been convicted after trial, there is obviously no question of any sentencing discount on that score.

13.In his written mitigations, Defence counsel has said that there were delays in the present case, the first one being caused by the adjournment of the original trial in order for a Gambian interpreter to be provided.  The second one being the short adjournment required as a result of prosecuting counsel’s arm injury.  Whilst there had no doubt been some delay, the question is whether it is such that a discount is called for.

14.Having looked at the matter, the answer is No.  To begin with, the original trial was aborted because the Defendant only mentioned on Day 1 of the trial that a Gambian interpreter was needed.  He could and should have done that much earlier.  And it is entirely his own fault in not doing so.  As to the adjournment occasioned by prosecuting counsel’s predicament, it has caused only a small delay in term of weeks.  And I am sure that it would not have caused any prejudice to the Defendant.

15.The next matter is the fact that the Defendant has now had a 5 months’ old child.  Now whilst I have considerable sympathy for her and her mother who is left to take care of the child on her own, I do not think this can be viewed as a mitigating factor.

16.Apart from these, nothing else has been put before me by the Defence to suggest that a discount on any other ground should be considered.  Nor could I see one after looking at what is before me.

Sentence

17.On the above basis, the Defendant is sentenced to 4½ years’ imprisonment.