COURT: You were convicted by the first jury of using copy of false instrument, and by the second jury of trafficking in a dangerous drug.
Facts of the Case
On 11 October 2022, a parcel arrived in Hong Kong from Dubai, and according to the airway bill, the parcel was sent out from Lusaka, a place in Zambia. The parcel was examined by Customs and Excise officer, and found therein 12 packets containing a total of 2,156.7 grammes of a crystalline solid containing 2,116.5 grammes of methamphetamine hydrochloride.
It was declared that the parcel contained metal spares samples. The consignee was said to be Michael Smith Chan, and the address for delivery was Flat H, 3rd Floor, 185 Reclamation Street, Yau Ma Tei.
Customs and Excise mounted a controlled delivery at that address on 12 October 2022 but was not successful. On 13 October 2022, you called Aramex and changed the delivery address. On the same day, you had various calls with the disguised Customs and Excise officer using the mobile telephone number of the consignee as stated on the airway bill.
Customs and Excise mounted another controlled delivery on 13 October 2022, at the ground floor of Kam Po Building. You signed on the acknowledgement receipt and produced a copy of a false Form 8 recognisance in the name of Cheikh Ahead Tidia. The Form 8 you produced had a unique serial number on it, and the genuine Form 8 with that serial number is issued to Baldeh Saikou Musa.
You were then arrested after you took over the parcel, and the estimated street value of the dangerous drugs was about HK$1,477,339.50.
In convicting you, the first jury must have found against you that you knew the copy of Form 8 you produced is a copy of a false identity document. Likewise, the second jury must also found against you that you have knowledge of drugs in the parcel.
It is also clear from the evidence that not only you, but at least another person were involved in taking delivery of the parcel.
You are a Form 8 holder yourself and has been in Hong Kong for 11 years. You have one previous similar conviction in October 2019, for which you were sentenced to 8 months’ imprisonment. You committed the last offence while you were a holder of a Form 8 recognisance. You are now 42 years old and came from Gambia, and you are married with two children.
For the narcotics involved in this case in the 1st charge, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and HKSAR v Abdallah [2009] 2 HKLRD 437, for ‘Ice’ between 1.2 kilogrammes to 4 kilogrammes, the sentencing bracket is 23 to 26 years’ imprisonment.
The parcel came from Lusaka via Dubai, and for this international element, one has to take that into account in assessing your role and culpability. It is said in the case of HKSAR v Lee Ming Ho [2024] HKCA 150, reported in [2024] 1 HKLRD 1186, international element goes to the role and culpability of the offender. It is also said in the case that:
“It is also somewhat illogical and inflexible to regard an ‘international element’ as deserving of a uniform enhancement of 2 years’ imprisonment, whenever it is established in respect of an amount of narcotic over 1 kilogramme, regardless of the actual quantity.”
The court in Lee Ming Ho cited the earlier case in Ali Qasim that, “Much will depend on the facts of the case and the extent of the involvement of the defendant”. Not only there is an international element, your involvement in the present case is more than just a courier in that you called to arrange change of delivery address. You also produced a copy of a false Form 8 to facilitate you receiving the parcel. I therefore assess your role and culpability in the present case and pick an initial starting point of 25 years.
As quite rightly recognised by you, there are two aggravating factors in your case. First, it is that you are a Form 8 holder. It is said in the case of HKSAR v Gulzar, reported in [2020] 3 HKLRD 805:
“Aggravating factor is that the appellant is a form 8 recognisance holder who is causing harm to Hong Kong whilst awaiting the outcome of his immigration claim. The enhancement for being a Form 8 recognisance holder must be substantial. Otherwise, it has no deterrent value.”
I pause here to say that you committed the last conviction while you are also a Form 8 holder. The Court of Appeal continued to say this:
“On many occasions this court has said that the amount of enhancement should be left to the discretion of the sentencers but that it will lose its deterrent value in respect of serious criminal conduct if it is less than 6 months.”
The court cited an earlier case, HKSAR v Singh Gursevak, which was reported in [2009] 2 HKLRD 274, wherein another division of the Court of Appeal discussed this aggravating factor in a thorough traverse of the authorities. And they say, this court had already decided that it should not attempt to provide guidelines on the length of enhancement for this particular aggravating factor. In giving the judgment of the Court of Appeal in Shah Syed Arif, Macrae JA, as Macrae VP then was, said:
“We do not agree that this court should attempt some form of guidelines for the enhancement of sentence which come within this category. Circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong. We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.”
The court continued:
“However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong and the impact of that betrayal on the life of the citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognisance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.”
The court said the following principles can be derived from these passages:
“The purpose of the enhancement is for the courts to mark in a meaningful way the significance of the defendant’s betrayal of the trust placed in him by the people of Hong Kong and the impact of that betrayal on the life of the citizens and the reputation of this city. The enhancement must be such a length that it will deter Form 8 holders from becoming involved in serious crimes. And in order for the enhancement to have a meaningful deterrent effect, it generally should not be less than 6 months for a serious offence.>
Thus, the sentencing principles that underlay the assessment of the amount of the enhancement are denunciation by the courts of criminal activity by Form 8 holders, and deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.”
The court continued:
“The amount of the enhancement will reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong. Making this assessment will entail the court having regard to the nature of the offence, circumstances of its commission, its actual impact on the victim, and its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.
Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect, then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comment that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed.”
Guided by the wisdom of the Court of Appeal in those cases, I enhance for this aggravating factor 2 years.
Finally, another aggravating factor is the previous conviction. As I said before, you committed the previous conviction, the previous offence, while you were a Form 8 holder. The sentence of 8 months did not deter you from trafficking in dangerous drugs and three years later, less than three years I would say, after you are released from prison, you committed the present offence. I am told that you are released in March 2020, so it is less than three years you committed the present offence.
It is also said in the case of Lee Ming Ho that it is unrealistic, as the court in Abdallah suggests, to treat every defendant who has a prior conviction for trafficking in dangerous drugs as deserving of at least 2 years’ imprisonment if convicted of trafficking in more than 1 kilogramme of narcotics.
The Court of Appeal in Lee Ming Ho cited the earlier case HKSAR v Har Tsz Yui [2020] 1 HKLRD 307. The Court of Appeal said:
“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chose to enhance a sentence for a previous record of similar offence must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual, and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.”
The Court cited with approval what Deputy Judge McMahon had said in the case of HKSAR v Lam Kwai Wa, which is a magistracy appeal, HCMA 1078/2002. The judge said:
“It seems to me that, as a matter of logic, the level of enhancement must depend on a number of factors peculiar to a particular defendant in the offence he has committed. Those factors include, primarily, firstly an assessment of the gravity of the category of offence involved, and secondly, an assessment of the degree of the defendant’s persistence as demonstrated by his criminal record.
Obviously the more grave the offence the greater the importance which may be attached to consideration of protection of the public by prevention of future offending by the particular defendant. The greater persistence the defendant has shown in committing the particular category of offence then the greater again the justification for enhancement of penalty so as to discourage him from future offences of that sort.
Nevertheless, in my view, two things must not be lost sight of. The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.”
Guided by these authorities, I enhance the starting point by 6 months in view of your previous conviction. So at the end of the day, my starting point for the trafficking in dangerous drugs charge is one of 27 years and 6 months.
I can see no mitigating factor in your background which allows me to reduce my starting point of 27 years and 6 months. So for the 1st count on the indictment, you are sent to imprisonment for 27 years and 6 months.
So far as the 3rd count is concerned, the Court of Appeal in Li Chang Li, reported in [2004-2005] HKCLRT 193. The Court has said if a person used a forged identity document, ID card, for the purpose of hiding his true identity, a 15 months’ imprisonment upon plea of guilty is the appropriate sentence.
In another magistracy appeal, HKSAR v Mohomed Rahoof, reported in [2016] 4 HKC 477. The magistrate sentenced a person using a forged Form 8 recognisance form to 21 months’ imprisonment, and that sentence was upheld on appeal.
In the circumstances, I also adopt 21 months as the starting point for the 3rd count on the indictment. Again, there is no mitigating factor. I therefore sentence you to 21 months for the 3rd count.
My final task is should that 21 months be made wholly concurrent, wholly consecutive, or partly concurrent and partly consecutive. I have taken into consideration of using a copy of false instrument in assessing your role and culpability in the 1st charge. And secondly, the using of a copy of false instrument was to facilitate you receiving the parcel.
And more importantly, I stand back and look at the totality. I decide that the 21 months’ imprisonment should run wholly concurrent with the 27 years and 6 months for the 1st count. Therefore, the total sentence I pass on you is one of 27 years and 6 months for both counts.