The particulars of the 1st count are that the defendant, on the 3rd day of October 2018, at the lift lobby, 2nd Floor, Tai Fong Building, Cosmopolitan Estates, No. 55 Ivy Street, Tai Kok Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 21.42 grammes of a solid containing 8.78 grammes of cocaine and 2.96 grammes of a crystalline solid containing 2.95 grammes of methamphetamine hydrochloride.
The particulars of the 2nd count are that the defendant, on the same day and inside Room 4 of Flat 5 of the same address as the 1st count, unlawfully trafficked in dangerous drugs, namely 4,171.01 grammes of a crystalline solid containing 3,626.78 grammes of methamphetamine hydrochloride and 165 grammes of a solid containing 65.8 grammes of cocaine.
Evidence During the Trial
On 3 October 2018, at about 5 pm, police officers intercepted the defendant at the lift lobby of 2nd Floor, Tai Fong Building, Cosmopolitan Estates, 55 Ivy Street, and found inside his right front trousers pocket 4 packets containing a total of 21.42 grammes of a solid containing 8.78 grammes of cocaine and 2.96 grammes of a crystalline solid containing 2.95 grammes of methamphetamine hydrochloride, commonly called ‘Ice’. This is the subject matter of Count 1.
The defendant was arrested by a police officer for possession of dangerous drugs and cautioned in Cantonese. The defendant said something in English which the officer did not understand. With the keys seized from the defendant, police officers opened the wooden door of Flat 5 on the same floor and the iron gate and wooden door of Room 4 inside Flat 5. I shall refer to them as Flat 5 and Room 4 respectively.
In Room 4, police officers found 4 plastic bags and 3 plastic bags respectively inside a black cabinet and a loudspeaker, containing a total of 4,171.01 grammes of a crystalline solid containing 3,626.78 grammes of ‘Ice’ and 165 grammes of a solid containing 65.8 grammes of cocaine. This is the subject matter of Count 2.
Inside Room 4, there were also some paraphernalia which could be used for packing dangerous drugs. The defendant was arrested for trafficking in dangerous drugs and cautioned in Cantonese. The defendant said something in English which the arresting officer did not understand.
Later, a post-recorded cautioned statement regarding the arrests of the defendant was obtained from the defendant by 2 police officers with one senior police officer acting as the English interpreter. In it, the defendant said under caution that during the first arrest, he had said he was bringing those drugs to Joy and he had said during the second arrest that those things belonged to Joy and he had only kept those because he was in need of money.
The defendant later attended a video-recorded interview under caution. He confirmed that the dangerous drugs were found in Flat 4 of Room 5 but he denied that he knew they were dangerous drugs. He had allowed his friend, Joy, to put personal properties such as clothes and shoes in Room 4. He found that what had been put there were not shoes and clothes. He did not know they were dangerous drugs but he knew that they were illegal things. When he was arrested, he was on the way to throw the things away.
The fingerprint of the defendant was found on the inside of the back cover which is also referred to as the control panel of the loudspeaker. His DNA was found on a number of the plastic bags containing the dangerous drugs.
The defendant gives evidence during the trial that he lived in Room 4 with a co-tenant. He is a national of Burkina Faso where the official language is French and the people there, including himself, speak Igbo. He came to Hong Kong in 2016 and has applied for non‑refoulement as a refugee. He worked as a waiter in a restaurant serving African food. He came to know a person by the name of Joy about two months before the day of his arrest. He had agreed to let Joy to come to live in his apartment and had given the keys to the apartment for Joy to put his belongings there.
On the day in question, he was drunk after attending a party and when he came out of the lift to go back to Room 4, 3 men dragged him to the staircase where they pushed his head against the wall. They handcuffed him and said they were police officers. They seized the keys to the apartment which Joy had returned to him earlier on. Some police officers went to the apartment first and he was taken there a bit later.
He denies to have any knowledge of the dangerous drugs found in Room 4, saying that he had never seen them and they did not belong to him. He also complains of being assaulted by the police and was induced and threatened to say in the video-recorded interview of what the police had coached him to say. He also says that he had not touched the loudspeaker or any of the dangerous drugs.
Criminal Record
The defendant has 1 previous conviction of breach of condition of stay for which he was sentenced to 5 days imprisonment suspended for 12 months on 12 October 2016.
Mitigation
The defendant is aged 31 and is a national of Burkina Faso in West Africa. He received secondary education. He came to Hong Kong in 2016 as a tourist and made a non-refoulement claim on 25 August 2016. He is single but has a girlfriend who has given birth to a child for him when he is in custody. The child is now aged about 18 months.
The counsel for the defendant points out that the amount of cocaine is small as compared to that of ‘Ice’ and should not have a significant impact on the overall sentence. He stresses that the 2 counts are part and parcel and the defendant only played a minor role. He admits that there is an aggravating factor in this case but asks the court to be lenient to the defendant.
Sentence
The Court of Appeal set down sentencing guidelines for trafficking in ‘Ice’ in HKSAR v Tam Yi Chun [2014] 2 HKLRD 691. For a quantity of up to 10 grammes of ‘Ice’, the starting point is 3 to 7 years imprisonment while that for 1,200 to 4,000 grammes of ‘Ice’ is 23 to 26 years imprisonment. According to AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming and Others [1990] 2 HKLR 370, the starting point for trafficking up to 10 grammes of cocaine is 2 to 5 years imprisonment while that for 50 to 100 grammes of cocaine is 8 to 12 years imprisonment.
2. types of dangerous drugs, namely cocaine and ‘Ice’, are involved in the 2 counts in this case. The court is of the view that a combined approach in sentencing is more realistic and appropriate in this case. As ‘Ice’ is the majority of the dangerous drugs involved and is more potent in toxicity, the court takes the ‘Ice’ as the basis to determine the initial sentence and then adjust it upwards by means of conversion test, which is converting the amount of cocaine into ‘Ice’.
In Count 1, the amount of ‘Ice’ involved is 2.95 grammes and the starting point is approximately 4 years 2 months imprisonment. The starting point for 8.78 grammes of cocaine involved in this count is about 4 years 7 months imprisonment, which is equivalent to 3.9 grammes of ‘Ice’. The total amount of ‘Ice’ in Count 1 will become 6.85 grammes, of which the starting point is about 5 years 8 months imprisonment. The court adopts this as the basic starting point.
The defendant has no valid ground of mitigation but there is an aggravating factor in that the defendant is a Form 8 recognisance holder. Having considered the authority of HKSAR v Dramane Mouhamed Saiti, CACC 191/2016, the Court enhances the starting point to 6 years 2 months imprisonment. Having considered the whole circumstances of the case, the Court sentences the defendant to 6 years 2 months imprisonment for Count 1.
In Count 2, the amount of ‘Ice’ involved is 3,626.78 grammes and the starting point is about 25 years 7 months imprisonment. The starting point for 65.8 grammes of cocaine in the count is approximately 8 years 5 months imprisonment which is equivalent to 31.25 grammes of ‘Ice’. The total amount of ‘Ice’ will become 3,658.03 grammes. Due to the small amount of the extra cocaine involved as compared to that of ‘Ice’, the starting point is still more or less 25 years 7 months imprisonment. The court adopts this as the basic starting point and enhances it to 27 years 7 months imprisonment for the aggravating factor of the defendant being a Form 8 recognisance holder. Having considered the whole circumstances of the case, the Court sentences the defendant to 27 years 7 months imprisonment for Count 2.
In all fairness, the sentence imposed on the defendant should not be more than what he gets should he have trafficked the dangerous drugs in the 2 counts together.
The total amount of ‘Ice’ in the 2 counts after the conversion of cocaine into ‘Ice’ is 3,664.88 grammes, of which the starting point is approximately 25 years 8 months imprisonment.
After enhancement for the aggravating factor, the sentence will become 27 years 8 months imprisonment. The counsel for the defendant is correct that the impact of the amount of cocaine on the overall sentence is not significant. Having considered the totality principle and the circumstances of the case, the Court orders 1 month of the sentence of Count 1 to run consecutively to that of Count 2. The defendant is to go to prison for a total of 27 years 8 months.