CRIMINAL CASE NO. 131 OF 2012
The quantity of the drug was 198.21 grammes and the narcotic quantity was 196.75 grammes.
The facts as they emerged from the evidence which the jury clearly accepted was that the defendant was intercepted by police who were acting on information. A team of officers was deployed in the area of Pei Ho Street and Lai Chi Kok Road in Sham Shui Po.
The police, who had a brief description of the target, saw the defendant in the street pressing the right pocket of his jacket as he walked and from time to time looking back behind him. When the police went to intercept him they identified themselves as police, at which point the defendant began to run. He was stopped and after a short struggle was subdued.
A search at the scene yielded one packet of suspected dangerous drugs in the right pocket of his jacket. A further search at the police station revealed one packet of suspected dangerous drugs in each of his socks and one packet in the left cuff of the sweater he was wearing. In the left pocket of the jacket police found 10 small resealable plastic bags of a type commonly used for packing drugs.
This defendant exercised his right of silence both at the scene of the arrest and later at the police station. Subsequent analysis by the Government Chemist confirmed the quantity and type of the drug as set out in the particulars of the charge. The estimated retail value of the drug at the time of arrest was $151,000-odd.
At trial the defendant, who elected to give evidence, agreed that he had possession of the packets but claimed he did not know what the contents were. He alleged that he had been framed by the police informant with the connivance of the police.
The defendant, who is a Nigerian National, has a clear record in Hong Kong. Counsel for the defendant advised that he had a clear record in Nigeria also. The defendant entered into an online relationship with his present wife at the end of 2010.
He made his first visit to Hong Kong in March 2011.
He was allowed to stay for 14 days on a visitor’s visa. Later he returned to Nigeria but returned to Hong Kong on 23 April 2011 and married on 13 May 2011.
He was waiting in Hong Kong for his dependent visa which in the ordinary course of events he would have received in January 2012. His wife was born in Hong Kong.
In mitigation I was reminded of those matters and told also that there were letters produced by the wife of the defendant and by the father of the defendant’s wife. Both of those letters seek leniency for the defendant and state that this offence is completely out of character for him. Both the father-in-law and the wife are very supportive of the defendant.
Counsel advised that the defendant had no previous drug history; that he had a clear record; that he was in the community legally; that he was working at his own mobile phone business in order to support himself; in fact, he was managing to support himself with a little assistance from his wife.
The guideline case for sentences of this type involving methamphetamine hydrochloride are set out in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.
The quantity of 70 to 300 grammes of methamphetamine hydrochloride has a sentencing range of 10 to 14 years’ imprisonment.
I was urged in particular, by defence counsel, to take into account the fact that this was a case where an informant was involved and that there was an element of entrapment involving both the use of the informant and an encouragement given to the defendant by the informant, or the likely encouragement by the informant to the defendant to commit this offence.
I was referred to the case of HKSAR v Cheung Yun Kei, CACC292/2000, where the court briefly looked at the ramifications of the use of an informer and its effect on sentence. In that case there appeared to be a real likelihood that the applicant was set up even though it was not necessarily by the police, it was someone other than the police.
The court referred to the case of Birtles and quoted from that case,
“As I have said, no one will perhaps ever know the exact truth, but it certainly seems to this Court, doing the best that they can in the matter, that there is a real possibility here that the appellant was encouraged by the informer and indeed by the police officer concerned to carry out this raid on the post office. Whether or not he would have done it without that, again no one can say, but there is, as it seems to this Court, a real likelihood that he was encouraged to commit an offence which otherwise he would not have committed.”
I am not convinced that this is a case which is similar to the case of Birtles, nor am I convinced that this is a case where there was necessarily entrapment by the informant.
The defendant was found with what was a very large and expensive quantity of drugs. It is highly unlikely that an informant would have arranged for him to have that quantity of drugs. It is clear by the jury verdict that they did not accept that there was behaviour by the police which encouraged this offence.
Effectively, the court is being asked to give a discount on sentence simply because the police here used an informant. I do not consider it is appropriate in this case to give an adjustment, or a discount, in terms of sentence.
I have taken into account the case and the circumstances of the case; I have taken into account the value of the drugs and the quantity of the drugs; I have taken into account what counsel has advanced in respect of this matter.
I sentence the defendant to 11 years’ imprisonment.