FESTUS NNAMDI OFFOR @ FREDERICK OSAWARU and Another v.. R.

IN THE COURT OF APPEAL

1993, No.490
(Criminal)

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J U D G M E N T

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Penlington, J.A. (giving judgment of the court) :

1. These are applications for leave to appeal against sentences passed by Deputy Judge O'Donnell for the offence of trafficking in a dangerous drug, herbal cannabis.

2. The facts were simple. A police officer acting as a drug dealer contacted the 1st applicant (D. 1) on 1st February 1993 and arrangements were made whereby he would supply 20 kilos of cannabis for $215,000. Following this agreement, the 2nd applicant (D. 2) became involved and the price was increased by him to $225,000. A sample was handed over by D. 1. This was a small sample but formed the basis of the first charge against D. 1 trafficking in 1.23 grammes of cannabis.

3. On the following day, a much larger amount, 11.29 kilogrammes of cannabis, was handed over by D.2 to police officers and both applicants were then arrested. That formed the basis for the second charge against the applicants of trafficking in a dangerous drug. Both applicants pleaded guilty to the charges.

4. The judge imposed sentences of six months imprisonment on D.1 in respect of the first charge and two years imprisonment in respect of both applicants on the second charge, in the case of D.1 the sentences to be consecutive. He considered that these charges involved separate incidents for which separate sentences should be imposed. He took as a starting point a sentence of three years imprisonment for the second charge which he reduced to two years because of the pleas of guilty and the cooperation with the Narcotics Bureau.

5. Before us the applicants point to the hardship which will be caused to their families by imprisonment in Hong Kong and that on return to their native country Nigeria they risk re-trial and further punishment.

6. We consider that the sentences of two years imprisonment, on the basis of previous sentences passed for similar offences, was quite correct but that the sentence in respect of D.1 should not have been consecutive. Although the 1.23 grammes sample was handed over on a separate occasion to the 11.59 kilos, it did form a part of this whole transaction. It was simply a sample of what was to be delivered on another occasion. To that extent D.1's application is therefore allowed. We treat this as the hearing of the appeal and D.1's sentence is altered to the extent that both sentences will be concurrent.