CRIMINAL CASE NO. 88 OF 2009
The defendant pleaded guilty at committal on 13 March 2009 to one charge of trafficking in a dangerous drug. The dangerous drug was 500.87 grammes of a solid containing 293.97 grammes of cocaine.
Today the defendant re-affirmed his plea of guilty and also confirmed the facts, slightly amended, that he had admitted at committal. The offender is a Nigerian citizen who entered Hong Kong on a business visa on 16 August 2007 and was permitted to stay for 21 days. He was arrested on 24 September 2007 as an over-stayer and on 26 September 2007, he claimed refugee status, as far as is known. It is not entirely clear when the defendant went to the UNHCR but, in any event, he was released on recognisance, pending determination of his claim to be a refugee.
It is noted that as is often the case when such claims are made, that the defendant had failed to mention his alleged refugee status on his arrival in Hong Kong.
On 10 October 2008, an undercover police officer posed as a drug buyer and spoke to the defendant on his mobile phone giving his name as “Hung” and claiming to be a friend of “Simon”. On hearing that, the defendant said that he had 1 kilogram of heroin for sale at a price of US$46,000. Six days later, the defendant telephoned the officer informing him that a kilogram of heroin was ready and a meeting was arranged for 17 October 2008 at a sandwich shop in Wanchai. At that meeting, the officer, at the defendant's request, showed cash of HK$360,000 to the defendant and told him that the money was for 1 kilogram of heroin.
The defendant then made a telephone call speaking in what was his native language and thereafter told the officer that he would bring him 500 grammes of heroin first and a further 500 grammes after he had received the money.
The defendant then left the sandwich shop after telling the officer to wait for him there and he returned about 10 minutes later. He took a paper box from the rucksack that he was carrying and told the officer there was 500 grammes of heroin inside the box. Inside the box, the officer found four tinfoil packets labelled "Tea" which covered five re-sealable transparent plastic bags of suspected dangerous drug. At this point, the officer signalled to other police officers who were waiting in ambush nearby and the defendant was arrested. After arrest and caution, the defendant said he had nothing to say.
Later, in a video-recorded interview, the defendant admitted selling a drug to the undercover officer and said that if the deal had been successful, he would have shared the profit of US$8,000 with an African man who had passed him the rucksack.
The Government Chemist analysed the suspected drugs and confirmed that the five bags contained cocaine, not heroin. The estimated retail value of that quantity of cocaine in October 2008 was HK$400,696.00.
Apart from his breach of condition of stay which has been charged but has not yet been dealt with, the defendant has no criminal record in Hong Kong. He is aged 29 and was educated to tertiary level in Nigeria. In his antecedent statement, he told the officer, he had never been employed in Nigeria, nor had he been employed in Hong Kong.
In mitigation, I was advised that the defendant came from Enugu Province in eastern Nigeria and that his parents and younger brothers had been killed in a vendetta resulting from a political quarrel involving his older brother. For that reason, he had left Nigeria.
Apart from the cogent mitigation of the plea of guilty entered by this defendant, his counsel, Mr Tolliday-Wright suggested that the court should take into account an element of entrapment in working out the starting-point for sentence. The defendant was apparently concerned that he had been used by others and it was submitted to the court that he would not have been involved without the undercover officer approaching him for this deal. Further, because he was registered with the UNHCR, he was living on an allowance provided by the Government and not permitted to work. He became associated with bad company, smoking hashish, and, from there, matters escalated until this particular incident occurred.
I agree that the cogent mitigation in this case is the plea of guilty. I do not consider that any element of entrapment exists in that case which entitles him to any reduction in sentence.
In considering the sentence starting-point, I note that the sentencing guidelines for cocaine are the same as for heroin. This was decided in the case of The Attorney General v Pedro Nel Rojas [1993] Application for Review, (unreported) and accordingly the guidelines in Lau Tak Ming are applicable. This narcotic quantity of 293.97 grammes falls within the band of 200 to 400 grammes for which the sentencing range is 12 to 15 years' imprisonment.
Taking all matters into account, I take a starting-point for sentence of 13 years. I give the defendant the full one-third discount for his plea and sentence him to 8 years 8 months' imprisonment.