HKSAR v. ZANGO MICHEL MENESES AFONSO

DCCC 65/2024

[2025] HKDC 453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 65 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Zango pleaded guilty before me to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 10 August 2023, at Flat A, 4^th Floor, Tai On House, No 201 Lai Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 37.9 grammes of a solid containing 28.8 grammes of cocaine.

Facts admitted by Mr Zango

2.  On 10 August 2023, at about 8:13 pm, Mr Zango left Flat A of 4^th Floor aforesaid.  Police laying in ambush intercepted him on the staircase between 4^th and 3^rd Floors.  Upon interception, Mr Zango sweated and his body shook.  Police revealed identity.  Body search of Mr Zango unveiled cash of $49, 5 keys, one phone in blue and one phone in gold colour.

3.  Mr Zango was brought back to the flat which was entered with one of the 5 keys and on strength of a search warrant.  The flat was about 100 square feet in size and consisted of a living room, an open kitchen and a toilet.  No one else was in the flat.

4.  On a table in the living room, the police found:

(a)  One plastic container containing 279 grammes of a solid (E1)  in which substances controlled under the Dangerous Drugs Ordinance (Cap 134)  were not detected;

(b)  One plastic bag containing 50.4 grammes of a solid (E2)  in which substances controlled under Cap 134 were not detected;

(c)  One plastic bag containing 28.3 grammes of a solid (E3)  in which substances controlled under Cap 134 were not detected;

(d)  Three packets (consisting of plastic wrappings)  (contained in one plastic bag)  containing a total of 37.9 grammes of a solid containing 28.8 grammes of cocaine (E4);

(e)  One digital scale (E5); and

(f)  One roll of transparent plastic bag (E6).

5.  In a wooden cabinet in the living room, the police found:

(a)  Two sets of Tenancy Agreement of the flat covering respectively the period from 26 March 2021 to 25 March 2022 and the period from 26 March 2022 to 25 March 2024 both showing that the landlord was one Mr Wu while the tenants were Mr Zango and another named person;

(b)  One set of rent receipt of the flat for the period from 26 July to 25 August 2023; and

(c)  One lighter (E7).

6.  At about 9:30 pm, police arrested Mr Zango for the offence of “Trafficking in dangerous drugs”.  Due to communication barrier, no caution was administered.

7.  Back at the police station, during a cautioned VRI, Mr Zango stated:

(a)  He rented the flat; the other tenant was a friend who did not reside there;

(b)  He lived alone in the flat;

(c)  E1 was flour for making bread;

(d)  E2 was some African substance for mixing with lamb;

(e)  E3 was African melon for mixing with soup;

(f)  E4 was an unknown substance given to him for his consumption by an unidentifiable friend for a better and flatter stomach this week in Mongkok;

(g)  E5 was for weighing the African substance;

(h)  E6 was for storing the beans; and

(i)  E7 was for lighting the cooking stove.

8.  The estimated street value of E4 was HK$40,742.50.

9.  Mr Zango arrived in Hong Kong in 2016 and was and is a Form 8 holder.

10.  Mr Zango now admits he had in his possession E4 for the purpose of unlawful trafficking.

Criminal record

11.  Mr Zango has a clear record.

Antecedents

12.  Mr Zango was born in Mozambique, is aged 40 (38 at the time of the offence), educated to secondary school level.  He is a Form 8 recognizance holder.  He was unemployed at the time of arrest.

Mitigation

13.  Mr M Peter Tracy of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Zango.  The following is a summary of the mitigation submissions.

14.  Mr Zango was born and raised in Mozambique.  He came to Hong Kong lawfully in 2016.  He subsequently made an application for asylum.

15.  Before leaving Mozambique in 2016, he married his wife now aged about 37 by whom he has two children: a son now aged about 13 and a daughter now aged about 11.

16.  Mr Zango while in Hong Kong subsisted on ISS allowance of $1,800 per month and dwelt in accommodation provided for him at the crime scene.  Mr Zango is aware that the starting point of his sentence will have to be enhanced because he was a Form 8 holder.

17.  Mr Tracy referred to HKSAR v Butt Mohammad Gulzar [2020] 3 HKLRD 805 at paras 31 to 38.

18.  Mr Tracy also referred to HKSAR v Lee Ming Ho [2024] 1 HKC 722[1] (see para 71 as to Form 8 holders; but also paras 73 to 77 on the application of the approach in HKSAR v Herry Jane Yusuph [2021] 1 HKC 458[2]).

19.  The bags of substances found in the flat which were said to be uncontrolled under Cap 134 were in accordance with African cuisine food substances or flavouring.  They have no connection with the case and have no bearing on sentence.

20.  Mr Zango is remorseful for this offence and he is repentant for it.  He pleaded guilty and is entitled to the full one-third discount.

21.  Cocaine has long been treated the same as heroin for sentencing purpose: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  These two cases were followed and developed in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197[3], 201D-F, at para 9.  The notional initial starting point might be a little under 6 ½ years (6 years and 5 months to be exact).  However, under the Herry Jane Yusuph approach, a lower starting point would suffice since this was obviously a small-scale trafficking operation.

22.  Mr Tracy referred in passing to the recent Court of Appeal authority of HKSAR v Huang Ruifang, CACC 106/2022, [2025] HKCA 234, Judgment of the Court dated 5 March 2025 given by Macrae Acting CJHC.  The judgment, though making some changes to the guidelines for trafficking in heroin and cocaine, did not disturb the sentencing band for those drugs between weights of 10 and 50 grammes within which this case falls.

23.  Mr Tracy submitted he was instructed to raise an unusual special ground of mitigation: Mr Zango had previously spent 15 months in custody in Hong Kong pending trial in the High Court with another defendant on a drug trafficking charge, in respect of which he (Mr Zango)  was acquitted and the other defendant was convicted.

24.  Mr Tracy is instructed to canvass whether, in the court’s mercy, the court might temper the otherwise appropriate sentence to take account of or to give credit for the whole or a part of his period of 15 months in custody in relation to a crime which he did not commit.  Mr Oliver Davies his counsel at trial has supplied a letter setting out the relevant facts (original submitted).

25.  There seems to be no authority on point.  It is submitted that the point is reasonably arguable: see HKSAR v Bayanmunkh [2012] 2 HKC 233, 239C-240A, at paras 13 & 14; Cross and Cheung on Sentencing in Hong Kong 11^th Edition pp 499-500.

Sentence

26.  Before sentencing Mr Zango, I have had regard to the six-step approach advocated in Herry Jane Yusuph (supra).  I am satisfied that Mr Zango played the role of no more than a storekeeper of the drug cocaine in this case.

27.  In Mr Zango’s case, I adopt an initial starting point of 6 years 5 months or 77 months’ imprisonment.  Because of Mr Zango’s status as a Form 8 recognizance holder which is an aggravating factor, I add to the starting point an extra 7 months.  I increased the starting point by that much because not only did Mr Zango abuse the trust reposed in him by the people of Hong Kong that he will abide by the law and maintain good behavior, he also used the accommodation provided for him as a storehouse of drug.

28.  Mr Tracy’s special plea on instructions for a further sentencing discount on the basis that Mr Zango had previously in 2017-2018 spent about 15 months in custody under remand for a similar offence (involving also cocaine)  of which Mr Zango was eventually acquitted by a jury (HCCC 126/2018 refers)  essentially preys on the court’s “mercy” jurisdiction.  Quite apart from the fact that there is no legal authority to say that the “mercy” jurisdiction of the court can be invoked in this way, I would have thought that Mr Zango, by his abuse of trust aforesaid, would be the last person eligible to ask the court for mercy.

29.  Although not material to the present sentencing exercise, I note in passing that in Mr Oliver Davies’ letter dated 10 February 2025, he said that “[a]t trial, the defendant testified… he did not take any package [of dangerous drug] to the car…”  Mr Davies also said “[i]t is clear from the verdict, that the jury accepted the defendant’s version of events.”

30.  However, from the Court of Appeal judgment of an application for leave to appeal against conviction (which was dismissed)  lodged by the co-defendant, HKSAR v Yip Ka Man [2022] 5 HKLRD 329, it appears that the defendant ie Mr Zango did not testify at trial but merely relied on his video recorded interview; and that the Court of Appeal’s interpretation of the jury verdict was somewhat different from that of Mr Davies.

31.  Mr Zango pleaded guilty to the charge in good time for which he shall receive the customary 1/3 sentencing discount.  There are no other mitigating factors that I can see which could reduce his sentence further.  In this respect, a previous clear record in such a serious case will not avail Mr Zango.

(Mr Zango, please stand)

32.  The sentence is 56 months’ imprisonment.