HKSAR v. JASSEY FRANCIS JA AND OTHERS

DCCC 25/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 25 OF 2017

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REASONS FOR SENTENCE

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1.  The defendants are charged respectively with one to three counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  D1, D3 and D4 were convicted on their respective charges upon their own plea of guilty and admission of the facts, their mitigation and sentence were adjourned pending the trial of D2. 

3.  D2 pleaded not guilty and was convicted after trial.

The facts

4.  The defendants are Form 8 Recognizance holder respectively.  On the following dates in between 3 May 2016 and 8 June 2016 they either acting on their own or jointly with another approached and sold dangerous drugs to a police officer who was deployed as an undercover agent to disguise as customer in the area of Lan Kwai Fong.  There was no evidence that the officer ever induced the defendants to commit a crime. 

Charge 1

At about 23:18 hours on 3 May 2016, D1 approached and sold a packet (described as one gram of cocaine), namely 0.45 grammes of a powder containing 0.34 grammes of cocaine, to the officer for $1,000.

Charge 2

At about 23:28 hours on 4 May 2016, D1 together with D2 approached and sold a packet (described as one gram of cocaine), namely 0.37 grammes of a powder containing 0.20 grammes of cocaine, to the officer for $1,000.

Charge 3

At about 00:28 hours on 6 May 2016, D4 approached and together with D3 sold a packet (described as one gram of cocaine), namely 0.24 grammes of a powder containing 0.17 grammes of cocaine, to the officer for $1,000.

Charge 4

At about 00:29 hours on 17 May 2016, D3 approached and sold a packet (described as one gram of cocaine), namely 0.22 grammes of a powder containing 0.15 grammes of cocaine, to the officer for $1,000.

Charge 5

At about 00:29 hours on 24 May 2016, D4 approached and sold a packet (described as one gram of cocaine), namely 0.32 grammes of a powder containing 0.17 grammes of cocaine, to the officer for $1,000.

Charge 6

At about 23:30 hours on 7 June 2016, D3 together with D1 approached and sold 20 packets (described as 20 grams of cocaine), namely 8.87 grammes of a powder containing 5.71 grammes of cocaine, to the officer for $14,000 at about 01:00 hours on 8 June 2016.

5.  Cocaine is a hard drug; I refer to the tariff in the case Lau Tak Ming [1990] 2 HKLR 370. And in considering the sentence for each defendant, I have in mind all the circumstances of the case, including the quantity, the scale of each transaction and the overall criminality where applicable.  

6.  D1, D3 and D4 indicated their plea of guilty at different stages after the case been set down for trial.  Since September 2016, the new rule for discount for plea of guilty applied to reflect the principle that the value of a plea of guilty is greater the earlier it is given.  A defendant indicates his plea of guilty after the trial dates are fixed is to be afforded a discount between 25% and 20% of that taken as the starting point for sentence.  Where a defendant pleads guilty on the first day of the trial and thereafter, the discount would go down from 20%.

7.  The Court of Appeal in HKSAR v Ngo Van Nam CACC 418/2014 has considered the rationale for the policy of affording a discount to a defendant for a plea of guilty and the usual practice for cases transferred to District Court from Magistracy before they announced the new rule for discount.  One third discount is a great reduction in the sentence, the revised guideline seeks to encourage those defendants who are aware of their guilt to indicate their plea in the earliest stage of the proceedings, because this serves the public interest to conserve the resources of the community.

8.  Mr Mitchell representing D1 and Mr Ross representing D3 and D4 in persuading me to allow them the full one-third discount, both relied on the late provision of prosecution materials, in particular the English translation of Chinese witness statement, as proper legal advice could not be provided before the receipt of the English translation.  The defence went on to submit that there was only the evidence of the undercover agent, there was no finger print, no DNA, no photo etc, that the defendants were entitled to proper legal advice before they indicated their plea.

9.  Fiat counsel Miss Mohamed raised objection, it was her position that there was no delay in the provision of the prosecution materials and the receipt of English translation at a later time should not be a mitigating factor to allow the defendants one-third discount. 

10.  Further information related to the matter was provided by the parties as directed during the adjournment and this morning for my consideration.  While it was proper for the defendants to require advice from their lawyers on the strength of the evidence, they did not require it in order to know whether they were guilty or not; they required it in order to assess the prospects of conviction or acquittal, which was different.

11.  The present case was an undercover operation, all the trafficking’s charges were simple transaction of cocaine between the undercover agent and the defendants on the street.  By 11 January 2017 the defendants and/or Legal Aid were served bundle and summary of facts.  It would appear on the fact that it was alleged the defendants sold cocaine to the same undercover agent, with reference to the officer’s witness statement dated 27 September 2016, the name he used during the operation was “Smiley”.  The defendants were in a position to know whether they sold cocaine to the same person as alleged in the charges and the facts. Where English translation may be essential to the defendants in other cases to understand the nature of the allegation, full English translation here was not required to ascertain the identity of the officer.  I am not persuaded that D1, D3 and D4 were entitled to one third discount in the circumstances of their case.

12.  Further, the fact that a person committed an offence whilst awaiting the processing of his immigration claim amounts to an aggravating factor.  In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 the sentence of a clear record defendant was enhanced by 3 months because of his refugee claimant status.  The Court of Appeal before up-holding the enhancement has analysed the reasoning in Sandagdorj Altankhuyag & another [2014] 1 HKC 206 and stated that:-

“Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.”

13.  The defence accepted that the fact that the defendants were Form 8 holder, awaiting the processing of their respective immigration claim, at time of the commission of the crime was an aggravating factor.  But Mrs Daley representing D2 submitted that the extent of enhancement was at the discretion of the court and drew my attention to the enhancement given to other defendants in the same operation, if it did happen.

14.  The defence also drawn my attention to the sentence received by other defendant arrested in the same operation.  In particular, that most of the cases in various magistrate courts involved a starting point lower than the tariff in Lau Tak Ming mentioned above.  While in appropriate cases, as a sentencing judge, I should take into account the disparity of sentences between defendants in similar circumstances, I should not allow myself deviate from the tariff imposed by higher court in considering the starting point for each charge.  And I should give proper consideration to all relevant aggravating and mitigating factors in sentencing.

Return to our present case:

15.  D1, in between 3 May and 8 June, participated in 3 occasions of trafficking, involving in total 9.69 gramme of a powder containing 6.25 gramme of cocaine.  The first occasion acting on his own trafficking 0.34 g of cocaine in one packet (Charge 1), the second occasion acting together with another trafficking 0.20g of cocaine in one packet (Charge 2), while on the last occasion acting together with another trafficking 5.71g of cocaine in 20 packets (Charge 6).  I consider the appropriate starting point for Charge 1 and 2 is 24 months and that for Charge 6 to be 42 months’ imprisonment.

16.  D1 committed the offences whilst he was awaiting the processing of his immigration claim, I consider this amounts to an aggravating factor and enchanted the sentence of each count by 3 months.

17.  D1 aged 25, divorced with a 3 years old son, his family is in Gambia.  He was sentenced to jail for 12 months in June 2015 for trafficking dangerous drugs and released in December 2015.  He committed same offences again between May and June 2016 and was arrested on 18 August 2016.

18.  D1 indicated his plea of guilty well after the PTR, not less than 21% discount would be given for his plea (ie charge 1&2: (24 + 3) × 21% = 5.67 round up to 6; Charge 6: (42 + 3) × 21% = 9.45 round up to 9.5), and I do not consider there to be any mitigating factor called for further deduction.  The 3 occasions took place on 3 separate days; I consider that the charges concerned separate incidents, however, taking into account of the totality principle, I consider the sentences should run partly concurrent and partly consecutive to each other, making a total of 40 months.

19.  D2, on 4 May 2016, together with D1 trafficking 0.20g of cocaine in one packet; I consider the appropriate starting point this charge to be 24 months.

20.  D2 committed the offence whilst he was awaiting the processing of his immigration claim, I consider this amounts to an aggravating factor and enchanted the sentence by 3 months.

21.  D2 aged 32, divorced with 2 children in the age of 8 and 5, his family is in Gambia.  He has 2 previous convictions, one possession of dangerous drug in February 2016 and one trafficking in dangerous drug in July 2017 concerned 0.26g cocaine and was sentenced to 12.5 months’ imprisonment (KCCC164/2017). 

22.  D2’s last trafficking conviction mentioned above was the 14 April 2016 incident and the previous Kowloon City Magistracy trial mentioned in the evidence, in that case the defendant was jointly charged with another defendant who was given a lesser term after a plea of guilty. 

23.  D2 was convicted after trial, and I do not consider there to be any mitigating factor called for deduction.  The 14 April drug transaction and the present case took place on two separate days, I consider that they are separate incidents, however, after taking into account of the totality principle, I consider the sentence should run partly concurrent with the KCCC164/2017,making a total of 30.5 months.

24.  D3, in between 6 May and 8 June, participated in 3 occasions of trafficking, involving in total 9.33 gramme of a powder containing 6.03 gramme of cocaine.  The first occasion acting together with another trafficking 0.17g of cocaine in one packet (Charge 3), the second occasion acting on his own trafficking 0.15g of cocaine in one packet (Charge 4), while on the last occasion acting together with another trafficking 5.71g of cocaine in 20 packets (Charge 6).  I consider the appropriate starting point for Charge 3 and Charge 4 to be 24 months, and that for Charge 6 to be 42 months’ imprisonment.

25.  D3 committed the offences whilst he was awaiting the processing of his immigration claim, I consider this amounts to an aggravating factor and enchanted the sentence of each count by 3 months.

26.  D3 aged 23 and his family is in Gambia.  He has a clear record.  He has been remanded since his arrest in August 2016.

27.  D3 is a young offender by law, however, because of the seriousness of the offences committed by him in about a month time and lack of family support in Hong Kong, I do not consider a detention center order is a viable option in his case. 

28.  D3 indicated his plea of guilty at the PTR, not less than 25% discount would be given for his plea (ie Charge 3&4: (24 + 3) × 25% = 6.75 round to 7; Charge 6 (42 + 3) × 25% = 11.25 round up to 11.5) and for his age and clear record, the sentence for each charge will be reduced further by 2 months.  I do not consider there to be any mitigating factor called for further deduction.  The 3 occasions took place on three separate days, I consider that they are separate incidents, however, after taking into account of the totality principle, I consider the sentence should run partly concurrent and partly consecutive, making a total of 34 months. 

29.  D4, in between 6 May and 24 May, participated in 2 occasions of trafficking, involving in total 0.56 gramme of a powder containing 0.34 gramme of cocaine. The first occasion acting together with another trafficking 0.17g of cocaine in one packet (Charge 3), the second occasion acting on his own trafficking 0.17g of cocaine in one packet (Charge 5).  I consider the appropriate starting point for Charge 3 and Charge 5 to be 24 months’ imprisonment.

30.  D4 committed the offences whilst he was awaiting the processing of his immigration claim, I consider this amounts to an aggravating factor and enchanted the sentence of each count by 3 months.

31.  D4 aged 36, his parents had passed away and his siblings are living in Gambia.  He was sentenced to jail for 12 months in August 2015 for trafficking dangerous drugs and released in March 2016.  He committed same offences again in May 2016 and was arrested on 18 August 2016.

32.  D4 indicated his plea of guilty at the PTR, not less than 25% discount would be given for his plea (ie Charge 3&5: (24 + 3) × 25% = 6.75 round to 7), however, I do not consider there to be any mitigating factor called for further deduction.  The 2 occasions took place on two separate days, I consider that they were separate incidents, however, after taking into account of the totality principle, I consider the sentence should run partly concurrent and partly consecutive, making a total of 22 months.

Order

D1

Charge 1 sentenced to 21 months’ imprisonment;

Charge 2 sentenced to 21 months’ imprisonment, 2.5 months consecutive with each other;

Charge 6 sentenced to 35.5 months, 16.5 months consecutive with each other, making a total of 40 months.

D2

Charge 2 sentenced to 27 months’ imprisonment, 9 months concurrent with the sentence of KCCC164/2017.

D3

Charge 3 sentenced to 18 months’ imprisonment,

Charge 4 sentenced to 18 months’ imprisonment, 2 months consecutive with each other;

Charge 6 sentenced to 31.5 months’ imprisonment, 14 months consecutive with each other, making a total of 34 months.

D4

Charge 3 sentenced to 20 months’ imprisonment,

Charge 5 sentenced to 20 months’ imprisonment, 2 months consecutive to Charge 3, making a total of 22 months.