HKSAR v. KAMARA ALPHA IBRAHIM BUBA

DCCC472/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 472 OF 2015

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

Facts

2.  About 9:55 p.m. on 21 January 2015, in the vicinity of Peking Road and Ashley Road, a police constable stopped and searched the defendant.  The constable found a sock which was tied to the underwear of the defendant under the waistline of the defendant’s trousers.  Inside the sock, there were 5 capsules containing what were subsequently confirmed by the Government Chemist to be 68.9 grammes of a solid containing 29.1 grammes of cocaine.

3.  The police constable then arrested the defendant.

4.  In a video-recorded interview conducted on the following day, the defendant stated under caution that a friend gave him the sock containing the cocaine in Chungking Mansion on 21 January 2015, and told him to deliver them to an unknown person in Peking Road.  His friend then tied the sock with the cocaine to his underwear.

5.  At the time of arrest, the defendant had in his possession two smart-phones, HK$7.30, US$23 and Indian Rupee 10.

6.  In January 2015, the average retail value of a solid containing cocaine was HK$977 per gramme. Hence, the cocaine found in the defendant’s possession had an estimated retail value of HK$67,315.

Criminal record

7.  The defendant has one previous conviction which was not similar to the present offence.  On 25 October 2013, he was sentenced to 4 weeks’ imprisonment suspended for 3 years for the offence of breach of conviction of stay (Case No. STCC4036/2013).  According to the court record, he came to Hong Kong legally on 16 February 2013.  He was permitted to remain as a visitor only until 2 March 2013, but he had overstayed for 7 months.  The defendant was in breach of that suspended sentence when he committed the present offence.

Personal and family background

8.  According to the information provided by Mr. Middleton, the learned solicitor for the defendant, the defendant is now 40 years old.  He is single.  He was born in Sierra Leone.  His parents have already passed away. He has no known relatives in his place of birth.  He had not received any formal education, and he made his living by selling clothes in a market in Sierra Leone.  He left his country because of religious persecution.  He came to Hong Kong legally via China in February 2013.  In September 2014, he made a claim under the Convention Against Torture, and his torture claim is still under process.  He is unemployed in Hong Kong.

Mitigation

9.  Mr. Middleton informed me that the defendant was living in a small unit in Temple Street with International Social Service helping him pay for his rent, water and electricity charges.  Nevertheless, the defendant still needed some financial assistance from his girlfriend who is a local resident to supplement his daily living expenses.  His girlfriend had however some personal problem subsequently and could not fund him anymore.  He had therefore become desperate for money, and he accepted the offer of $1,500 for taking the drug in question to a contact in Peking Road.  Mr. Middleton pointed out that the defendant had only little money with him at the time of his arrest, and that this was a case where the defendant had been made use of by others to act as a courier.  Mr. Middleton accepted that the defendant’s immigration status might be an aggravating factor, but stressed that the defendant was very remorseful for what he had done, and that the defendant did not play any trick to deny his offence.  He pointed to the fact that the defendant made full and frank admission when he was arrested, and that the defendant pleaded guilty in Court.  He accepted that the defendant’s guilty plea was the only mitigating factor.  He asked for the defendant’s suspended sentence not to be activated because it was not for an offence similar to the present one, and the defendant might not be prosecuted for that offence of breach of condition of stay had he made his torture claim at that time.

Reasons for sentence

10.  Trafficking in a dangerous drug has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of the dangerous drug being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option will not be employed.

11.  In the present case, Mr. Middleton had not argued that the defendant should not be sentenced to prison.  This is a very realistic approach because the facts of this case, the background of the defendant, and the sentencing tariff laid down by the Court of Appeal all lead to the inevitable conclusion that a sentence of immediate term of imprisonment is the only viable sentencing option.

12.  As to the quantum of the sentence, the Court of Appeal made it clear in the case of Attorney General v Pedro Nel Rojas[1] that the sentencing tariff for trafficking in heroin hydrochloride, which was laid down in the case of The Queen v Lau Tak Ming [2], was applicable to trafficking in cocaine.  According to these authorities, the appropriate starting point of the prison term for trafficking in 10 to 50 grammes of cocaine was between 5 to 8 years.  This tariff will apply not only to cases involving actual trafficking but also to cases involving possession of dangerous drugs for the purpose of trafficking.  Hence, the fact that the defendant was not found to have actually handing over possession of the cocaine to others is immaterial.

13.  Mr. Middleton referred me to 3 cases[3], all from the District Court, to assist me to fix the appropriate starting point.  I have studied those cases and used them as a reference.

14.  In the present case, the defendant trafficked in 29.1 grammes of cocaine.  Applying the sentencing tariff to this case, and bearing in mind that he has not committed any drug offence before, I am of the view that a starting point of 72 months’ imprisonment is appropriate.

15.  There is however one aggravating factor in this case. 

16.  The defendant was at the material times and is still a torture claimant. Because of his torture claim, he has been allowed to remain in Hong Kong without his liberty being taken away pending the determination of his immigration claim.  Yet, he abused the freedom given to him to commit the present offence.

17.  The Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres[4] recognized that not every crime committed by a foreign national in Hong Kong would justify an increase in sentence, but if the offence committed by its nature or the circumstances of its commission would have a serious detrimental effect on the community at large, or would significantly impact prejudicially on Hong Kong’s reputation, the offender’s immigration status could be regarded as an aggravating feature.  In that case, the Court of Appeal went on to hold that drug trafficking was clearly within this category of offence that justified an enhancement of the sentence because its commission both affected the community at large and had a significant impact on Hong Kong’s reputation.  In that case, the sentencing judge increased the starting point by 3 months to reflect this particular factor, and his decision was upheld by the Court of Appeal.

18.  I find the defendant’s immigration status to be an aggravating feature of his offence.  For this reason, I adjust the starting point of his prison term upward by 3 months.  It means that if there is no factor that may reduce the sentence, he will have to serve a term of 75 months’ imprisonment.

19.  There is of course mitigating factor in favour of the defendant.  He has pleaded guilty.  He is entitled to be given the usual one-third discount of his sentence in recognition of this factor.

20.  There is however no other valid factor that may reduce his sentence further. 

21.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 50 months in the present case.

22.  The defendant is in breach of the suspended sentence imposed in Case No. STCC4036/2013.  Section 109C(1) of the Criminal Procedure Ordinance makes it clear that when the defendant committed another offence punishable by a term of imprisonment during the operation period of the suspended sentence, the suspended sentence should be activated unless it would be unjust to do so. I have considered the reasons advanced by Mr. Middleton for not activating the suspended sentence.  The mere fact that the two offences were different in these two cases would not make activation of the suspended sentence unjust, and it would not be right to say that the defendant might not be prosecuted for the earlier offence had he made his torture claim earlier for the simple reason that he was not a torture claimant at that time.  I find that it would not be unjust to activate the suspended sentence, and I activate it.

23.  I note however that in this earlier case, the defendant was arrested on 15 October 2013, and he was taken to court only on 25 October 2013.  He had been detained in custody for 11 days before he was given the suspended sentence.  For this reason, I find that it will be just to activate the suspended sentence only partially, and taking into account the principle of totality, I activate that suspended sentence only partially.  I order that the defendant shall serve a term of 2 weeks’ imprisonment for breaching the suspended sentence in Case No. STCC4036/2013, to run consecutively to the sentence imposed in the present case.

24.  In other words, the defendant has to serve a total term of 50 months and 2 weeks’ imprisonment for these two cases.

[1] CAAR15/1993

[2] [1990] 2 HKLR 370

[3] HKSAR v Sit Wing Yin (DCCC310/2013), HKSAR v Chiu Tsz Chun (DCCC547/2013) & HKSAR v Lam Kwan Lung (DCCC1067/2014).

[4] CACC319/2014