HKSAR v. OWUSU DANIEL

DCCC 615/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 615 OF 2015

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REASONS FOR SENTENCE

1.  The defendant faces 1 charge of "Trafficking in dangerous drugs" (Charge 1) and 1 charge of "Trafficking in a dangerous drug" (Charge 2).

2.  He pleaded not guilty to Charge 1.  In respect of Charge 2, he pleaded not guilty to "trafficking" but guilty to "possession".  The prosecution proceeded with both charges against him.  After trial, the defendant was found guilty of Charge 2.  For Charge 1, he was found guilty of "possession".

3. I have stated the facts in my Reasons for Verdict and need not repeat them here. In gist, shortly after midnight on 5 March 2015, at the alleyway at Nos.21-23 Luard Road, Wanchai, the defendant was found in possession of 5 plastic bags which contained a total of 2.48 grammes of a crystalline solid containing 2.46 grammes of methamphetamine hydrochloride (commonly known as "ICE"); and 8 plastic bags which contained a total of 3.98 grammes of a powder containing 1.61 grammes of cocaine. This is Charge 1.

4. Some 2 hours later, the Police searched the defendant's home situated at To Kwa Wan. They found, inter alia, 1 plastic bag which contained 9.50 grammes of a powder containing 4.05 grammes of cocaine; 2 electronic scales; and 102 empty transparent resealable plastic bags. I found him guilty of "trafficking". This is Charge 2.

Mitigation & Sentence

5. The defendant is 28 and has a clear record. According to his evidence, he came to Hong Kong from his home country Ghana in 2006. He lodged a torture claim in 2007 and was granted a Form 8 by the Immigration Department. His non-refoulement application was rejected in February 2015 (shortly before the present offences). Mr. Mitchell informed me that there is no more appeal for the defendant's torture claim; he would be subject to deportation after serving his sentence.

6. In mitigation, Mr. Mitchell submitted that the defendant has behaved himself during his stay in Hong Kong (albeit as a Form 8 holder). He committed the present offences after his torture claim was rejected. In respect of Charge 2, although the defendant is not a drug addict, he claimed having consumed some of the cocaine contained in Exhibit P10. In other words, there was some degree of self-consumption; and some discount should thus be given. In respect of Charge 1, Mr. Mitchell submitted that the latent risk is low. The quantities of both drugs were small and it is possible that they came in the way they were packaged.

7. The defendant is a Form 8 holder. On sentencing criminals with similar immigration status, the Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 made the following comments :-

"23. Underlying the court's conclusion in Sandagdorj[1] is the reality that without making an immigration claim this foreigner would have no right to remain in Hong Kong, indeed his continued presence here would in itself be unlawful. It is only because his immigration claim is being processed that he is permitted to remain in Hong Kong. This permission flows from Hong Kong complying with international obligations that it has freely accepted and the human rights provisions of the Basic Law.

24. But Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. It does not do so because it sees itself, and wants to be seen by the rest of the world, as a society governed by the rule of law whose members place a high premium on the rights of the individual. … As a consequence the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

25. By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

26. Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender's immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.

27. But as Macrae JA pointed out in Sandagdorj, not every crime will justify taking account of the offenders' immigration situation as an aggravating feature. The offence committed must, by its nature or the circumstances of its commission, have a serious detrimental, effect on the community at large or significantly impact, prejudicially, on Hong Kong's reputation. Clearly drug trafficking falls within this category of crime as its commission both affects the community at large and has a significant impact on Hong Kong’s reputation…"

8. The Court of Appeal has also held in the same case that "simple possession" is the type of offence which can be said to seriously affect the community at large and has the effect of tarnishing Hong Kong's reputation[2]. Hence, in the present case, the defendant's immigration status constitutes an aggravating feature in both charges.

9. Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.

Charge 1

10. A total of 2.46 grammes of ICE (packaged in 5 plastic bags) and 1.61 grammes of cocaine (packaged in 8 plastic bags) were involved. When determining the proper starting point, I have borne in mind the 3-step approach laid down in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405. First, for the quantities and nature of the drugs involved, I adopt a starting point of 15 months' imprisonment. Second, the packaging of the drugs must be a latent risk factor. In the absence of any other evidence suggesting "trafficking", I accept that the risk is moderately low. I will add 2 months to reflect it. For the defendant's immigration status, I will add another month. Hence, the starting point shall be 18 months.

11. I sentence the defendant to 18 months' imprisonment for Charge 1.

Charge 2

12. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370). For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment. The defendant trafficked in 4.05 grammes, the appropriate starting point is 3 years. 13. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[3]. Apart from his bare assertion, there is no evidence to suggest that the defendant is a drug user[4]. The DATC Report confirmed that he is not a drug dependant. For the purpose of sentencing and having considered the nature of cocaine, I, however, accept that the possibility of self-consumption exists. I am prepared to reduce the sentence to 32 months[5] to reflect the discount for self-consumption. On the other hand, I will add 1 month for the defendant being a Form 8 holder. Hence, the starting point shall be 33 months. 14. I sentence the defendant to 33 months' imprisonment for Charge 2.

Overall Sentence

15. Bearing in mind the totality principle, I order 6 months in Charge 1 to run consecutive to Charge 2. Thus, arriving at a total prison term of 39 months.