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HCCC 78/2017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 78 OF 2017
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| Date: |
3 October 2017 at 9.55 am |
| Present: |
Miss Lilly Wong, SPP (Ag) of the Department of Justice, for HKSAR
Mr James H M McGowan, instructed by Massie & Clement, assigned by DLA, for the accused
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| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.
The facts of the case may be summarised as follows. Subsequent to discovering of cocaine in a parcel posted from Brazil, a controlled delivery was arranged to the address of the recipient as shown on the parcel. The address was of a guesthouse. There was no guest in the name of the recipient. The defendant, however, appeared and requested for collection of the parcel. He produced a Nigerian passport bearing the name of the recipient. The defendant was then asked to sign on the air waybill to acknowledge receipt of the parcel. As soon as the defendant received the parcel, he was arrested.
Under caution, the defendant said he was asked by a friend who was the holder of the passport to collect for a reward the parcel, which he was told contained paper.
I was told that the defendant is a Beninese, now aged 37. He had completed primary education and was doing clothing business in Benin. He was a recognisance holder. He did not have a criminal record in Hong Kong.
In mitigation, learned defence counsel, Mr McGowan, stressed that the defendant had pleaded guilty at the earliest opportunity and that the defendant is remorseful. The defendant has written a letter in which he expressed his remorse and apology. The defendant came to Hong Kong because his safety has been at risk arising from a family dispute.
The man he helped in this case had offered support to him during his stay here. Mr McGowan also asked the court to take into account that the defendant had done his best to assist the authority but, unfortunately, it yields no fruitful return up to now.
The dangerous drug the defendant trafficked in was 640 grammes of cocaine. The Court of Appeal held, in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.
In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes. In a subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes.
I see no reason to justify any departure from the sentencing tariff.
There was aggravating feature in this case. It involves an international element. Further, the defendant committed the offence during his stay in Hong Kong on the basis of his torture claim, this being an aggravating feature which was established in cases such as HKSAR v Shah Syed Arif, CACC 298/2015.
In my judgment, the starting point should be enhanced by 1 year for these reasons. Having considered the whole circumstances, in my judgment, only a starting point of 21 years is sufficient to reflect the seriousness of the present case.
The defendant is entitled to a one-third discount for his guilty plea, his previous clear record and remorse he has expressed. I was told that the defendant did provide information to the authority. However, as the information provided is limited, it bears no result. In all the circumstances, I do not see justification to depart from the established authorities that no discount should be given for this matter.
Having considered the whole circumstances including what learned defence counsel said on the defendant’s behalf, in my judgment, one-third is the extent of discount the defendant is entitled to in this case.
For the reasons I have mentioned, I sentence you to an immediate imprisonment term of 14 years.
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