HKSAR v. EJEGI GODSPOWER

CACC 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 159 OF 2014

(ON APPEAL FROM DCCC NO. 43 OF 2014)

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J U D G M E N T
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Hon Lunn VP (giving the Judgment of the Court) :

1. The appellant appeals with leave granted by McWalters JA on 12 August 2014, against the sentence of 3 years and 10 months’ imprisonment imposed on him on 28 April 2014 by District Court Judge Dufton, following his conviction on his plea of guilty to a single charge of trafficking unlawfully in a dangerous drug, namely 35.83 grammes of the solid containing 15.60 grammes of cocaine. On 21 October 2013, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The appellant, who appeared in person before the single judge, was granted legal aid on 12 August 2014 and was represented by Mr Donald in this hearing.

The facts

2. The appellant accepted the Summary of Facts as the basis of the court accepting his plea of guilty.  On 21 October 2013, acting on intelligence, PC 4214 Chan Ming On used the pseudonym Dickson to make contact with the appellant by telephone from his telephone, 5443 8414, to telephone number 5978 0069.  In subsequent SMS messages between them, PC 4214, having raised the question of whether or not the appellant had available ¼ ounce of “coke”, agreement was reached between them that the appellant would supply two ‘bullets’ of about 20 grammes of cocaine each for the payment of $17,000, plus a commission to the appellant of $2,800 together with the costs of his taxi fare to deliver those dangerous drugs to Robinson Road later that evening.  The appellant suggested that the price per gramme for the cocaine would be less, $500 per gramme for a bulk purchase.

3. At around 9:12 p.m. on the same evening, in a telephone call to PC 4214’s telephone, the appellant told the officer that he, and another person, were on the way to Robinson Road and asked for specific directions.  Then, in a second telephone call the appellant informed PC 4214 that he was outside Lai Cheung House.  There, other police officers intercepted the appellant and the person accompanying him.  A search of the appellant revealed two packets containing 15.60 grammes of cocaine, the subject of the charge, wrapped in tissue paper hidden in his underpants and a mobile telephone with the number 5978 0069.  Having been arrested and cautioned the appellant denied knowledge of the dangerous drugs.  When PC 4214 rang the appellant’s telephone with his own telephone, the name Dickson was displayed on the appellant’s telephone.  In a subsequent video-recorded interview, the appellant admitted that he was at Lai Cheung House looking for someone called Dickson, but denied knowledge of other matters. 

4. The retail street value of the dangerous drugs was around $39,042. 

Reasons for sentence

5. In sentencing the appellant, the judge stated in his Reasons for Sentence that he took into account the mitigation, his criminal record, albeit that he had not been convicted of any offence related to dangerous drugs, and that the appellant suffered from depression when serving his last sentence of imprisonment.  In 2006 the appellant had been sentenced to 2 weeks’ imprisonment, suspended for 12 months, for a conviction for common assault.  In November 2009, he had been sentenced to a total of 42 months’ imprisonment, following his conviction for six offences of dishonesty.  Furthermore, in mitigation the judge had been informed that the appellant had been residing in Hong Kong for 11 years, during which time he had pursued unsuccessfully a claim for refugee status and then a claim for asylum on the basis of a fear of torture.  The latter claim had been rejected during his imprisonment for the offences of dishonesty.  Now, he was pursuing a non-refoulment claim, arising from a fear of inhumane treatment if he was returned to Nigeria.

Starting point for sentence 

6. The judge said that, having regard to the judgments of this Court in AG v Pedro Nel Rojas[1]and R v Lau Tak Ming[2]and to the quantity of cocaine involved, he adopted a starting point for sentence of 5 years and 6 months’ imprisonment.

7. Having regard to the judgment of this Court in HKSAR v Sandagdorj Altankhuyag & another [3] and having noted that the appellant was an unsuccessful claimant for asylum and had an extant claim for non-refoulment under the Torture Convention, the judge said that he was satisfied that trafficking unlawfully in a dangerous drug was an offence which affected the community and had a significant impact on the reputation of Hong Kong.  As a result, he enhanced the starting point for sentence by 3 months’ imprisonment to 5 years and 9 months’ imprisonment.  Affording the applicant a discount of one third for his plea of guilty, the judge reduced the sentence to 3 years and 10 months’ imprisonment.

Ground of appeal against sentence

8. The single ground of appeal advanced by Mr Donald was that, notwithstanding that the issue had not been raised in mitigation, the judge had failed to consider the issue of entrapment as relevant to sentence.  No place is found in the grounds of appeal for the complaints made in the attachment to Form XI filed by the appellant on 9 May 2014 and relied upon before the single judge in respect of the competence of counsel representing him at sentencing.

9. Mr Donald submitted that the issue of entrapment was patently a live issue on the facts of the case.  There was no evidence to show the appellant was a drugs dealer.  The facts were consistent with the appellant being entrapped into committing an offence that he would not otherwise have committed.  Thus, the judge’s failure to consider entrapment as a factor relevant to sentence was a material error. 

The respondent’s submissions

10. For the respondent Ms Audrey Parwani submitted in written submissions that the facts of this case did not give rise to any issue of entrapment.  The police officer did no more than present the appellant with an unexceptional opportunity to commit a crime.  This was a case of a ‘legitimate trap’ only “not to be equated with entrapment”.[4]

A consideration of the submissions

11. At the outset, it is to be noted that, following the initial contact between the police officer and the appellant and the appellant’s arrest in Robinson Road some minutes after 9:12 p.m. on 21 October 2013, all the events occurred on the same day, within a matter of hours.  In that period of time, the appellant had responded to a request to sell one quarter ounce of cocaine by suggesting that a bulk purchase was cheaper per gramme and agreeing to sell two ‘bullets’ of cocaine, each weighing about 20 grammes, for an overall price of around $20,000.  Then, he was arrested in possession of 35.83 grammes of a solid, containing 15.60 grammes of cocaine as he sought to deliver it.  Further, the applicant was proactive in first making a telephone enquiry as to the specific address to which the cocaine was to be delivered and then alerting the officer by a second telephone call of his arrival at Lai Cheung House.

The Law

12. There is no dispute that entrapment does not exist as a substantive defence in English and Hong Kong law.  However, “it may be of relevance in mitigation at penalty for the offence”.[5]

13. In The Queen v Liu Chun Fai [6] this Court addressed the issue of the circumstances in which it would be appropriate to have regard to the fact of entrapment in relation to the appropriate sentence to be imposed upon an applicant.  In the judgment of the Court, Hunter JA noted of the judgments in the House of Lords in R v Sang [7] that they “all acknowledged that entrapment was a relevant factor which could go in mitigation of sentence.”  However, Hunter JA went on to state, “But it is important, we think to see the authorities which their Lordships cited with approval as being true cases of entrapment and which result in some mitigation of penalty.”[8]  [Italics added.]

14. Hunter JA went on to note the distinction between incitement, which is true entrapment, and permissible police investigation:[9]

“ The distinction between incitement which is true entrapment, and simply proper police investigation was most clearly pointed by Lord Simon in his speech in R v Sang, at p. 443 where he says this:

“ It is only fair to observe that in the present case there was not a shred of evidence that the police sergeant was an agent provocateur. Even if he had been told by an informer that the accused was a hardened dealer in forged banknotes, it would, I think, have been his duty to carry out a test to discover whether this information was correct—which events show that it obviously was. No doubt, the accused would not have committed the crime of trying to sell forged bank notes to the police had he known it was the police. There can, however, be little doubt that he would have tried to sell the forged notes to anyone else whom he “considered safe”.”

15. In his judgment in R v Loosely, Lord Nicholls described an “opportunity” test for discerning the difference between the two circumstances:[10]

“ If the defendant already had the intent to commit a crime of the same or a similar kind, then the police did no more than give him the opportunity to fulfil his existing intent. This is unobjectionable. If the defendant was already presently disposed to commit such a crime, should opportunity arise, that is not entrapment. That is not state-created crime. The matter stands differently if the defendant lacked such a predisposition, and the police were responsible for implanting the necessary intent.”

16. That approach was cited with approval in the judgment of McMahon J in the judgment of this Court in HKSAR v Wong Kwok Hung[11].

17. We are satisfied that in all of the circumstances of this case PC 4214 did no more than give the applicant an opportunity to commit the offence.  It is clear that the applicant readily acceded to the opportunity and pressed home the commission of the offence.  No doubt, he would have committed the offence had a member of the public presented him with the same opportunity. No issue of entrapment relevant to mitigation of sentence arose in this case.

Enhancement of sentence

18. As noted earlier, in sentencing the applicant the judge enhanced the starting point taken for sentence by 3 months’ imprisonment.  He said that he did so having regard to the judgment of this Court in HKSAR v Sandagdorj Altankhuyag & Another and having regard to the fact that the offence was one “which affects the community and reputation of Hong Kong”.  In HKSAR v Sandagdorj, Macrae JA said that those, such as the applicant, who were permitted to remain in Hong Kong “at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed” were to be regarded as abusing the hospitality of the authorities and people of Hong Kong if they embarked upon the commission of criminal offences which have “the effect of tarnishing the city’s reputation for order and security”.[12]  However, Macrae JA went on to say that:[13]

“ We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

19. Mr Donald took no issue with the enhancement of sentence.  He was right not to do so.  The appellant had abused Hong Kong’s hospitality, committing multiple criminal offences, for which he was sentenced to 3½ years’ imprisonment in 2009, and the instant offence in 2013.  Obviously, providing a telephone delivery service for a substantial quantity of cocaine to an address in Mid-Levels was a commission of a serious offence which directly impacted on the community and reputation of Hong Kong.

Conclusion

20. We are satisfied that there is no merit in the appeal against sentence, which is dismissed.

[1] AG v Pedro Nel Rojas [1994] 2 HKCLR 69.

[2] R v Lau Tak Ming [1990] 2 HKLR 370.

[3] HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206.

[4] SJ v Musa [2001] 1 HKC 14 at 24 H.

[5] R v Loosely [2001] 1 WLR 2060 , Lord Nicholls, at 2065 F-G.

[6] The Queen v Liu Chun Fai [1987] HKLR 1032.

[7] R v Sang [1980] AC 402.

[8] The Queen v Liu Chun Fai [1987] HKLR 1034 D-E.

[9] The Queen v Liu Chun Fai, pages 1034 J - 1035 C.

[10] R v Loosely; Lord Nicholls, page 2068 G-H, paragraph 21.

[11] HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, at 628 B-E, paragraphs 23-4.

[12] HKSAR v Sandagdorj Altankhuyag & Another, paragraphs 20-21.

[13] HKSAR v Sandagdorj Altankhuyag & Another, paragraph 22.