HKSAR v. OBI COSMAS NONSO (aka DOLO SEYDOU) AND ANOTHER

HCCC 93/2022
HCCC 94/2022

(Heard together)

[2023] HKCFI 2997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 93 AND 94 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The 1^st defendant in HCCC 93/2022, Mr Obi Cosmas Nonso, referred to as “D1” hereinafter for convenience, was charged with altogether two counts of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Chapter 134.

In HCCC 93/2022, the trafficking in dangerous drugs charge alleges that he, together with the 2^nd accused, on 28 July 2020, at Room A, 4^th Floor, No. 41 Tai Po Road, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 727.5 grammes of a crystalline solid containing 721.8 grammes of methamphetamine hydrochloride, 119 grammes of a solid containing 62.1 grammes of cocaine and 986.8 grammes of tablets containing 233.12 grammes of what is commonly known as MDMA.

In HCCC 94/2022, D1 is charged with one count of trafficking in a dangerous drug which alleges that on 28 July 2020 at the staircase of No. 41 Tai Po Road, Sham Shui Po, Kowloon, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely, 69 grammes of a crystalline solid containing 68.2 grammes of methamphetamine hydrochloride.

The 2^nd defendant Bah Amadou, D2, faces the same count of the trafficking jointly with Dl as I have just averred to in HCCC 93/2022.

Procedural History

At the committal proceedings on 27 June 2022, Dl pleaded guilty to the charge in HCCC 94/2022 and was committed to the High Court for sentencing. Dl and D2 both sought to plead guilty to the charge in HCCC 93/2022 but challenged the exact quantities of dangerous drugs that they were each aware of and responsible for. Madam Justice Remedios ordered the matter to be dealt with by way of a Newton hearing.

That Newton hearing was originally set down for 10 days and commenced before me eventually on 3 November 2023. It lasted for 8 court days in total, inclusive of almost 7 days of evidence and submissions, and today for my ruling, further mitigation and sentence.

After the hearing, I rejected both D1’s and D2’s cases that they were trafficking in separate quantities of dangerous drugs individually. I accepted that the prosecution has proven beyond reasonable doubt that D1 and D2 were acting in a joint enterprise and trafficking in the whole quantities of drugs found inside the subject premises. This will be the basis upon which I shall sentence both defendants.

Facts

The facts pertaining to the offences are as follows.

On 27 July 2020, D1 and D2 departed from No. 41 Tai Po Road, Sham Shui Po, Kowloon, Hong Kong (the “Building”)  and proceeded to Un Chau Street towards Nam Cheong Street. D1 held a white bag containing bundles of 1,000 empty resealable plastic bags which he dropped at a nearby rubbish bin.

At around 12.36 am on the same day, the police intercepted D1 and D2 at the 2^nd floor staircase of the Building. Police entered Room A of the 5^th floor of the Building (the “Flat”)  using keys found on D1’s person. Upon searching the premises, the police found Exhibits P1 to P23 containing various amounts of drugs - ‘Ice’, cocaine, and MDMA. Within the Flat, police also found four electronic scales, a bag full of empty resealable plastic bags, and a sealing machine.

The drugs seized at the Flat were of those quantities as I have read out from the indictment of HCCC 93/2022.

The average retail prices for drugs including ‘Ice’, cocaine, and ecstasy-type tablets at the material time were HK$658 per gramme, HK$1,616 per gramme, and HK$56 per tablet respectively.

After being brought back to the police station, a body search was conducted on D1, upon which three bags of dangerous drugs were found and seized from his underpants, containing a total of 68.2 grammes of ‘Ice’. This forms the basis of the trafficking charge against him in HCCC 94/2022.

The Defendant’s Background

D1 is currently 42 years old, a Nigerian national, and is a Form 8 holder. He received education up to primary school. He was unemployed at the time of the arrest. He has a previous conviction in Hong Kong for drug trafficking in 2011, for which he was sentenced to 8 years and 9 months of imprisonment. He was last discharged from prison on 18 January 2017.

D2 is 48 years old, a Guinean national and is also a Form 8 holder. He received education up to secondary school. He was unemployed. D2 has also been convicted in Hong Kong previously for trafficking in a dangerous drug for which he was sentenced to 12 years’ imprisonment. He was last discharged on 29 April 2018.

Sentencing Principles and Tariffs

The tariff for trafficking in ‘Ice’ is found in the case of HKSAR v Tam Yi Chun. Quantities between 600 and 1200 grammes of ‘Ice’ would attract a starting point for sentence after trial of between 20 to 23 years’ imprisonment.

In respect of cocaine, in HKSAR v Abdallah, the Court of Appeal confirmed that the tariff case for heroin is also applicable to the drug of cocaine and according to the applicable sentencing tariff, quantities between 50 and 200 grammes of cocaine would attract a starting point of 8 to 12 years’ imprisonment.

As for MDMA, the applicable sentencing tariff was set out in SJ v Hii Siew Cheng. The starting point for sentence for quantities between 50 to 300 grammes of MDMA is between 6 to 9 years.

The appropriate sentencing approach in cases involving a multitude of different drugs is to compute the overall starting point by applying the combined approach. The essence of that approach is that if the drugs are approximately similar in nature, it would be fair to consider them together, bearing in mind that there might necessarily have to be adjustment even if the combined approach is used to avoid absurdity.

The total amounts of dangerous drugs trafficked by D1 and D2 were different. On top of his involvement in the joint trafficking activity forming the subject of the indictment in HCCC 93/2022, D1 was also charged with unlawfully trafficking 68.2 grammes of ‘Ice’ in the other case of HCCC 94/2022. Hence I will determine the appropriate starting point for sentencing for each defendant independently and I shall first deal with the sentence for D2.

Starting Point for D2

D2 was charged with trafficking 721.8 grammes of ‘Ice’, 62.1 grammes of cocaine, and 233.12 grammes of MDMA. On a pure mathematical approach, the respective starting points for sentences for these drugs are 20 years and 7 months, 8 years and 4 months, and 8 years and 2 months of imprisonment respectively.

As the amount of ‘Ice’ involved is higher than the amounts of cocaine and MDMA, and given its similar potency with cocaine, I consider it appropriate to use ‘Ice’ as the base drug and come to the view that justice is best served by adopting the combined approach and adjusting upwards the starting point of 20 years and 7 months to 20 years and 11 months, taking into account the quantities of cocaine and MDMA involved. In accordance with the principles enunciated in HKSAR v Chan Yuk Leong [2014] HKLRD 325, I have cross-checked this starting point against the results of the absurdity test, the conversion test and the ratio test.

Absurdity Test

By applying the absurdity test, the starting point would be one of 22 years and 1 month.

Conversion Test

(I)  Converting all the drugs into ‘Ice’

By applying the conversion test, if all drugs were ‘Ice’, the appropriate starting point for sentence is about 20 years and 11 months.

(II)  Converting all the drugs into cocaine

If all drugs were cocaine, the appropriate starting point for sentence is about 21 years and 2 months.

(III)  Converting all the drugs into MDMA

If all drugs were MDMA, the appropriate starting point for sentence is over 20 years.

Ratio Test

The ratio test would produce a result of 20 years and 3 months.

D1’s Starting Point for Sentence

I now move on to deal with the notional starting point for sentence for D1.

Notwithstanding that D1 was charged with two counts of trafficking in dangerous drugs in separate cases, the drugs possessed by D1 were discovered on the same day and the facts pertaining to both offences were closely linked. It is hence appropriate to take into account the total quantity of the drugs in the two offences to arrive at an appropriate starting point for sentence [see HKSAR v Wong To, CACC 508/2000 (unreported)  and HKSAR v Chow Yu Chi, CACC 359/2000 (unreported)]. Both counsel for the prosecution and counsel for D1 agreed with this approach.

D1 was charged with trafficking in altogether 790 grammes of ‘Ice’, 62.1 grammes of cocaine, and 233.12 grammes of MDMA in total. On a pure mathematical calculation, the respective starting points for sentences for these drugs quantities of drugs are 20 years and 11 months, 8 years and 4 months, and 8 years and 2 months of imprisonment.

Using ‘Ice’ as the base drug, I am of the view that it is just and appropriate to adjust upwards its starting point of 20 years and 11 months to 21 years and 3 months in computing the starting point for sentence for D1. For cross-checking purposes, I set out below the relevant results of the absurdity test, the conversion test, as well as the ratio test.

Absurdity Test

By applying the absurdity test, the arithmetic starting point would be 22 years and 5 months.

Conversion Test

(I)  Converting all the drugs into ‘Ice’

If all drugs were Ice", the appropriate starting point for sentence for D1 is about 21 years and 3 months.

(II)  Converting all the drugs into cocaine.

If all drugs were cocaine, the appropriate starting point for sentence is about 21 years and 7 months.

(III)  Converting all the drugs into MDMA

If all drugs were MDMA, the appropriate starting point for sentence is over 20 years.

Ratio Test

The ratio test would produce a result of 20 years and 8 months.

Having regard to the results of the absurdity test, conversion test and ratio test, as well as the well-established sentencing policy of the courts of Hong Kong to place emphasis on deterrence to curb drug-trafficking activities, especially for hard drugs including ‘Ice’ and cocaine, I am satisfied that the respective notional starting point for sentence for D1, 21 years and 3 months, and for D2, 20 years and 11 months are just and appropriate.

The Defendant’s Roles

As to the roles and culpability of the defendants, notwithstanding the presence of packaging tools such as resealable bags, electronic scales, and a sealing machine found inside the Flat (hence indicative of the fact that the Flat could probably be used as a packaging centre), there is no concrete evidence that the defendants assumed more active roles than that of, or akin to, a storekeeper or courier. For that reason, I would not further enhance the starting points for sentence of the defendants on the basis of their roles.

Aggravating Factors

However, I have to consider whether there is any aggravating factor which warrants further enhancements of the starting point.

Repeat Offender in Respect of Serious Offences

It is well established that a previous conviction for trafficking in a dangerous drug justifies and warrants enhancement of the starting point (see R v Lau Tak Ming, HKSAR v Abdallah and HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630).

In view of D1 and D2’s previous criminal convictions for the same offence of trafficking in dangerous drugs and their repeated offending of the same offence less than four years upon their respective discharges from prison, I take the view that it is necessary for me to enhance each of their sentences by 4 months on the basis of both individual and public deterrence, since both of them apparently have not made any effort to change their ways after their conviction and sentence for the previous, very serious, trafficking offences.

Trafficking In Different Types of Drugs

It is also well established that the trafficking in two or more types of dangerous drugs, even if they are separately packed and not in a prepared mixture, would lead to two aggravating considerations, namely, the ability of the trafficker to cater to a wider market, and more significantly the effect on users of a combination of dangerous drugs (see Chan Yuk Leong, at paragraphs 23 to 25).

Given the myriad of dangerous drugs involved in the present case, as well as their vast quantities, I deem it necessary to enhance the starting point for each of them by a further 4 months. That applies to both D1 and D2.

The Defendants’ Status as Form 8 Holders

In their mitigation on behalf of the defendants, Ms Alva and Mr Raffell accepted that the defendants’ commission of the present offences whilst in their capacity of being a Form 8 holder is an aggravating feature of itself.

It is clear that an enhancement of the starting point is warranted if a non-refoulement claimant, who enjoys the privileges and protection granted to him by the wider community of Hong Kong, blatantly abuses the hospitality of the people by committing a serious offence whilst remaining at liberty in Hong Kong. The degree of enhancement is left to the discretion of the sentencing judge having regard to the individual circumstances and impact of the particular offence in question (see HKSAR v Ali Saif [2018] HKCA 358 and HKSAR v Shah Syed Arif [2016] 4 HKLRD 664).

In light of the large quantity and type of drugs in this particular case, I consider it appropriate and necessary to enhance the sentences to be imposed on D1 and D2 by 16 months for this aggravating factor, them being Form 8 holders.

In view of the aforesaid aggravating factors, the notional starting points of D1 and D2 would be enhanced up to 23 years and 3 months and 22 years and 11 months of imprisonment respectively.

Next, I am required to have due consideration of all mitigating factors. Neither Ms Alva nor Mr Raffell has

suggested any exceptional personal circumstances of the defendants which require the court’s consideration as a mitigating feature in imposing the sentence.

Meanwhile, after the Newton inquiry, I have rejected the defendants’ claim and found that the prosecution has proven, beyond reasonable doubt, its case of joint enterprise in relation to HCCC 93/2022. In that regard, although recognising that the full one-third discount should not be applicable in these circumstances, both Ms Alva and Mr Raffell urged me to consider still giving some discount in sentence for the early indication of a plea, albeit they accept that the court is entitled not to give the full one-third discount after the failed Newton hearing.

Mr Raffell suggested that a 20 per cent discount would be appropriate in the circumstances of this case, with which suggestion Ms Alva seemed to be in agreement. As I have ruled against the case advanced by D1 and D2 after the Newton hearing, the duration of which cannot be said to be short, I am not prepared to grant them the full one third discount. In view of the time and resources expended by the court in the course of the eight-day hearing, and the fact that I found the case advanced by both of them to be incredible, I shall exercise my discretion to reduce the discount to be given to one of 20 per cent, as suggested by Mr Raffell. In this regard, I have considered the cases including HKSAR v Mathews Roger Raphael, CACC 41/2016, especially at paragraphs 27 and 29, HKSAR v Lee Chiu Pang [1995] 2 HKC 523, paragraphs 11 to 12, and HKSAR v Yan Siru [2004] 3 HKLRD 348, paragraphs 6, 13 and 14.

This would mean that the overall sentence to be imposed on D1 would be reduced to 18 years and 7 months, and the overall sentence to be imposed on D2 would be reduced to 18 years and 4 months.

The final step of the sentencing process is to stand back and look at the overall sentence imposed in order to ensure it is fair and just. Having considered the circumstances of the offences, the defendants’ background, as well as the mitigating circumstances as submitted on their behalf, I take the view that the ultimate sentences of 18 years and 7 months and 18 years and 4 months are appropriate and not out of proportion to the defendants’ overall criminality.

In passing the sentence, I must consider the fact that D1 and D2’s culpabilities are separate and distinct and that D1 is involved in two individual counts in two cases, whereas D2 is only involved in one. The overall starting points for sentence derived from the combined approach as set out above, with all drugs in HCCC 93 and 94/2022 being taken into account, could adequately reflect the respective culpability of each of the defendants. As such, the ultimate sentences I impose on the defendants will be as follows.

Regarding HCCC 93/2022, the final sentence I impose on both D1 and D2 is 18 years 4 months' imprisonment.

Regarding the charge against D1 alone under HCCC 94/2022, the amount of ‘Ice’ found in D1’s underpants was 68.2 grammes, which on a strict mathematical calculation would result in a starting point of 10 years and 11 months’ imprisonment. Taking into account the applicable aggravating factors aforementioned namely, D1 being a repeated offender and a Form 8 Holder, I will enhance the starting point by 4 months and 6 months respectively, arriving at one of 11 years 9 months’ imprisonment. Having regard to D1’s timely guilty plea to that charge under HCCC 94/2022, he will be entitled to the full one-third discount and be sentenced to 7 years 10 months’ imprisonment upon deduction for that.

And for D1, taking into account the totality principle, I order that 3 months of the sentence under HCCC 94/2022 are to be served consecutively to that under HCCC 93/2022, so that the overall sentence that would reflect D1’s ultimate culpability will be one of 18 years and 7 months.

So, D1, you are hereby sentenced to a total of 18 years and 7 months’ imprisonment. D2, you are sentenced to 18 years and 4 months’ imprisonment.