R. v. Ahmed Nishoni and Another

CACC000540/1991

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Coram: Hon. Fuad, V.P., Penlington & Nazareth, JJ.A.

Date of hearing: 12 March 1992

Date of delivery of judgment: 12 March 1992

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J U D G M E N T

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Penlington, J.A.:

1. The applicants herein pleaded guilty before Bewley, J., to charges of trafficking in dangerous drugs, namely 192 grammes of a mixture containing 180 grammes of salts of esters of morphine. The drugs therefore were No. 4 heroin.

2. The admitted facts of the case were that, acting on information, police officers negotiated with the lst applicant (Dl) in the carpark near the Mariners Club in Tsimshatsui, for the sale of drugs to one of the police officers. D1 said that he would deliver the drugs in his hotel but the police officer insisted that it should be done in the carpark. D1 then agreed to that and telephoned the 2nd applicant (D2) in the hotel. As a result of that D2 then brought the drugs to the carpark. Both applicants were there arrested.

3. The facts therefore show that not only were the applicants bringing the drugs into Hong Kong but they were actively engaged not only as couriers but as dealers. D1 is from Lesotho and D2 is a Ghanaian. They have, of course, clear records in Hong Kong and both pleaded guilty at the very early stage, albeit in the face of very strong evidence. The trial judge had regard to the guideline decision in Lau Tak Ming [1990] 2 HKLR 370 that trafficking in 50 to 200 grammes of heroin comes into a bracket calling for sentences of between 8 and 12 years, the amount here falling in the top part that bracket. He therefore took as a starting point 12 years' imprisonment which clearly was correct and he gave the applicants a discount of 25% to reflect their early plea of guilty.

4. A clear record for this type of offence is of very little relevance.

5. The applicants point to the effect of the sentences on their families, which is sadly always the case, and in relation to D2, that it will prevent him from continuing his education.

6. These are factors, however, which people who are considering engaging in this terrible trade must consider before they embark on it. Unfortunately persons coming from West Africa and engaging in this traffic in this part of the world are becoming more and more common and clearly sentences are required which will have the effect of deterring this activity.

7. We are satisfied that the starting point taken by the trial judge was perfectly correct. The discount he gave could not be said to be in any way too low and the applications for leave to appeal against sentence are refused.

Representation:

Appellants, Ahmed Nishoni & James Yeoboah Asiamah, in person D.G. Saw for Crown