HKSAR v. KOUAME EMMANUEL AND ANOTHER

HCCC 108/2022

[2024] HKCFI 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 108 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Kouame Emmanuel, hereinafter referred to as “D1”, you are found guilty after trial concerning two counts of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134, Count 1 and Count 2; and one count of obstructing a police officer in the due execution of his duty, contrary to section 36(b)  of the Offences against the Person Ordinance, Cap. 212, Count 3.

Saley Zakari, hereinafter referred to as “D2”, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134 (2^nd count)  on the first day of trial, and admitted the facts relevant to the 2^nd count. It was agreed by parties that Count 3 be left in the court file and would not be proceeded against you without the court’s leave. As a result, you are convicted as charged.

The particulars of the 1^st count against D1 are that on 2 April 2020, at Room 7, hereinafter as “Room 7”, Nagaland Guesthouse, Flat D4, 17^th Floor, Block D, Chung King Mansions, Tsim Sha Tsui in Hong Kong, hereinafter referred to as “the Nagaland Guesthouse”, unlawfully trafficked in dangerous drugs, namely, 632.7 grammes of a solid containing 211.36 grammes of cocaine, 999 grammes of a crystalline solid containing 958 grammes of methamphetamine hydrochloride and 694 grammes of a solid containing 306 grammes of methamphetamine.

The particulars of the 2^nd count (against both D1 and D2)  are that on the same date, at Room 6, hereinafter referred to as “Room 6”, Nagaland Guesthouse in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 343.7 grammes of a solid containing 103.5 grammes of cocaine, 280 grammes of a mixture containing 217 grammes of heroin hydrochloride and 24 grammes of a mixture containing 0.87 grammes of cocaine, 3.56 grammes of monoacetylmorphine and 0.52 grammes of heroin.

The particulars of the 3^rd count against both D1 and D2 originally it has been placed in the court file as against D2, so it is against D1, are that on the same day, at Room 7, Nagaland Guesthouse, in Hong Kong, wilfully obstructed Law Chi-sing, a police officer of the Hong Kong Police Force, in the due execution of his duty.

The Facts

D2 admitted to a set of facts dated 24 January 2024 which concerns the 2^nd count. As regards the prosecution case against D1, the facts are consistent with those admitted by D2, save for the parts that are not relevant to D2.

For the purpose of sentencing, in short, at 6.16 am on 2 April 2020, the police armed with a search warrant conducted a house search or an operation at Nagaland Guesthouse situated at Chung King Mansions, Tsim Sha Tsui, Hong Kong.

When they reached outside Room 7, they attempted to open the door, but they failed; they then banged on the door and revealed their identity by shouting in both Chinese and English; which was followed by a noise of broken glass from inside Room 7, so they forced open the door by using a door ram to gain entry. Then in the course of attempting to push open the door, they encountered resistance.

Upon entry, the police officers saw two men, namely D1 and D2. D2 was closer to the door standing and D1 was inside the toilet standing. These two men then put up some struggle but were subdued by the police officers. When both D1 and D2 were under control, the police officers then conducted a search inside Room 7. They found that the window in the toilet was broken, with several pieces of glass fragments on the floor, and found a rucksack underneath the water basin in the toilet, which contained dangerous drugs.

It is not in dispute that dangerous drugs were found in the rucksack inside Room 7, which forms the basis for Count 1. D1 was arrested. The salient search results are as follows:

(1)  1 plastic bag contained 1 plastic bag containing 694 grammes of a solid containing 306 grammes of methamphetamine;

(2)  1 plastic bag containing 1 plastic bag containing 999 grammes of a crystalline solid containing 958 grammes of methamphetamine hydrochloride;

(3)  12 packets containing a total of 235 grammes of a solid containing 88.9 grammes of cocaine;

(4)  1 plastic bag containing 1 plastic bag containing 295 grammes of a solid containing 70.1 grammes of cocaine;

(5)  1 plastic bag containing 2 packets containing a total of 15.3 grammes of a solid containing 7.20 grammes of cocaine;

(6)  1 plastic bag containing 1 plastic bag containing a total 31.2 grammes of a solid containing 20.6 grammes of cocaine;

(7)  1 plastic bag containing 1 plastic bag containing 19 grammes of a solid containing 8.59 grammes of cocaine;

(8)  1 plastic bag containing 18.2 grammes of a solid containing 8.15 grammes of cocaine;

(9)  1 plastic bag containing 19 grammes of a solid containing 7.82 grammes of cocaine.

Room 6 was also searched by another team of officers, and amongst other things, dangerous drugs were found on a bed, which forms the basis of the 2^nd count. Police officers controlling both D1 and D2 were told of the search result, then they arrested both D1 and D2.

It is not in dispute that the drugs found in Room 6 are as follows:

(1)  1 plastic bag containing 1 plastic bag containing 7 packets containing a total of 137 grammes of a solid containing 28.1 grammes of cocaine;

(2)  1 plastic bag containing 5 packets containing a total of 100 grammes of a solid containing 19.8 grammes of cocaine;

(3)  1 plastic bag containing 68.6 grammes of a solid containing 29.7 grammes of cocaine;

(4)  1 plastic bag containing 38.1 grammes of a solid containing 25.9 grammes of cocaine;

(5)  1 plastic bag containing 1 plastic bag containing 280 grammes of a mixture containing 217 grammes of heroin hydrochloride; and 3 packets and 3 plastic bags containing a total of 24 grammes of a mixture containing 0.87 grammes of cocaine, 3.56 grammes of monoacetylmorphine and 0.52 grammes of heroin.

As a result of the results of the searches, D1 and D2 were arrested.

The Government Chemist later examined and certified the dangerous drugs involved were as those particularised in the charges.

Mitigation – 1^st Defendant

D1 is currently 36 years old. According to his evidence and his antecedent statement, he came from Ivory Coast although he grew up in Nigeria. He came to Hong Kong in around November 2018 and became a Form 8 holder in December 2018. He has no criminal conviction record. D1 received education up to Secondary 3, he admitted at trial that apart from receiving financial assistance from the ISS, he also helped some smart phone dealers to pack smart phones.

D1’s only surviving family member is his 35 years old brother, who remains in Africa.

Mitigation – 2^nd Defendant

D2 was born in Nigeria in 1981. He is now 42 years old. He received education up to secondary level. D2 and his wife have a 7-year-old son. D2’s mother and 5 siblings are also living in Nigeria. D2’s twin brother passed

away in around 2001, he then started to rely on sleeping pills. D2 received education up to Secondary 4, and has no previous criminal conviction record.

It was submitted that when D2 left Nigeria, his wife was pregnant, and she is now struggling to support their son. He has been communicating with his wife during the remand but due to depressed feelings, he stopped communicating for the last 3 months.

Counsel for D2 Ms Alva asked this court to give D2 a 20 percent or more guilty plea discount. In this regards, it may be useful to set out the salient chronology. True it is that D2 indicated his guilty plea of Count 2 in July 2022, during the committal stage. However, as pointed out by Ms Alva, D2 changed his plea to not guilty regarding Counts 2 and 3 very soon after, hence the case was committed to this court for trial. Ms Alva said much resources had been wasted by D2’s change of plea.

As per directions made by this Court, grounds of objection against D2’s interviews were filed, and parties were supposed to commence trial by having a voir dire before the empanelment of a jury. It was only when the arraignment was conducted that D2, not known to Ms Alva, replied that he was guilty to Count 2. As such, the case was adjourned for counsel to take instructions and for the prosecution to amend the indictment and Summary of Facts so as to cater for the sudden change of plea.

Sentencing Principles

For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine, heroin, methamphetamine and esters of morphine. No doubt the drug has terrible consequences for the individual, there are also serious consequences for the community.

The view of the community is reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in dangerous drugs.

The guidelines for trafficking in heroin originated in
R v Lau Tak Ming, which were confirmed in HKSAR v Abdallah Anwar Abbas by the Court of Appeal. The relevant guidelines are also applicable to offences of trafficking in cocaine and ester of morphine (see HKSAR v kanfune Bashiri Rajabu and HKSAR v Matthrew Rogers Raphael).

As regards the sentencing guidelines for methamphetamine, the sentencing guidelines are contained in the Attorney General v Ching Kwok Hung, as amended in HKSAR v Capitania Edwin F and as revised in HKSAR v Tam Yi Chun.

In the present case, the total amount of methamphetamine in Count 1 exceeds 600 grammes, the same tariffs as for heroin in HKSAR v Abdallah Anwar Abbas apply.

Therefore, the applicable guidelines for sentencing for both Count 1 and Count 2 shall be that of Lau Tak Ming and Abdallah Anwar Abbas.

Sentences

In respect of D1, Counts 1 and 2 be considered together. As submitted by Mr Davies for D1, for reason that the offences were all committed on the same day and in close proximity, and the applicable tariffs are the same, I will take into account the approach as stated in HKSAR v Wan Lau Mei, that what makes more sense and is the best approach is to add up all of the drugs in these 2 charges, and impose the same sentence for each charge to be served wholly concurrent to each other.

In this case, it makes more sense to approach sentences of both Count 1 and Count 2 by adding up all the drugs in these 2 charges for reasons stated above and also that I will have to approach the overall sentence pursuant to the six-step propounded in the case of Herry Jane Yusuph. However, since D1 was convicted after trial and there is a chance that the case be brought further, I am not minded to impose the same sentence for both Count 1 and Count 2 as stated in the case of Wan Lau Mei. I will however, adopt the relevant approach to check the appropriateness of the overall starting point.

Arithmetically, 211.36 grammes of cocaine would attract 12 year and 2 months’ imprisonment. Having converted this into the corresponding quantity of ‘Ice’, that methamphetamine, you would give 169 grammes of ‘Ice’. So having done the conversion and used ‘Ice’ as the basis for the sentence of Count 1, you would give 1,433 grammes of ‘Ice’ (1,264 and 169 grammes). Concerning Count 2, the total narcotics is 325.45 grammes and given the trivial quantity of the ester of morphine, I will treat the whole lot as heroin. This will then be

converted in 246 grammes of ‘Ice’, that alone attracts a starting point of 13 years and 10 months’ imprisonment.

In respect of D1, I then combine the narcotics under both counts, which gives rise to 1,679 grammes of ‘Ice’ (1,433 plus 246 grammes), which would achieve an initial starting point of 23 years and 6 months’ imprisonment according to the common applicable guidelines.

In respect of D2, the total quantity of dangerous drugs involved in Count 2 is 325.45 grammes, which achieves an initial starting point of 13 years and 10 months’ imprisonment.

As to the respective role played by D1 and D2, in light of the evidence adduced, in particular the circumstances D1 and D2 were found, the CCTV footages of the evening of 1 April 2020, I find that the respective role played by D1 and D2 was that of a mere courier or storekeeper, namely they belonged to the least culpable band under the case of HKSAR v Herry Jane Yusuph.

In determining the proper starting point for D1 and D2, I have to consider whether there are any aggravating factors which might require me to enhance this starting point. As already noted, the trafficking in this case involves more than one type of dangerous drugs, and that both D1 and D2 are Form 8 holders (see HKSAR v Ali Saif).

Concerning D1, I will enhance the initial starting point of 23 years and 6 months for both Counts 1 and 2 by three months as more than one type of dangerous drug were involved, and another 1 year due to D1’s Form 8 status. This leads to an overall starting point of 24 years and 9 months.

In arriving at this overall starting point, I have also considered the individual sentences concerning Count 1 and Count 2. The initial starting point in respect of Count 1 alone shall be that of 23 years and 3 months’ imprisonment. 3 months of enhanced sentence be given because more than one type of drug were involved and 1 year of enhanced sentence for his Form 8 status. This leads to an overall starting point of 24 years and 6 months’ imprisonment in respect of Count 1.

As to Count 2 against D1, the same starting point of 13 years and 10 months’ imprisonment is applicable, I am minded not to enhance the sentence given the relatively minor quantity of the other types of drugs involved, but I will enhance by 1 year due to his Form 8 status. So the individual sentence for Count 2 is 14 years and 10 months’ imprisonment.

Given the approach I adopted in considering the overall sentence of both Counts 1 and 2, 3 months of the term of Count 2 shall run consecutively to the term of Count 1, leading to a 24 years and 9 months’ imprisonment.

D1 also faces Count 3. In view of the prosecution case, that when the police officers had broken the doorknob of Room 7, their attempt to gain entry was resisted by people inside Room 7, namely, D1 and D2. It lasted for a few seconds. The prosecution fairly based their case only upon the resistance part instead of the glass breaking and the struggling put up by D1, hence, I will not take into account the struggling part as well as the glass breaking part in sentencing D1 under Count 3. In any event, I accept submissions made by Mr Davies that no one was injured and D1 was quickly calmed down.

In that case, I will adopt a starting point of 1 month’s imprisonment concerning Count 3 against D1. In light of the whole of the circumstances, I will not enhance the sentence for D1’s Form 8 status.

It was submitted that the offence under Count 3 was essentially part of the drug trafficking offences and should therefore run mostly if not wholly concurrent to sentences of Counts 1 and 2. Despite the great effort of Mr Davies, with respect, I do not agree. In the course of conducting the raid due to the information received by the police, D1 did attempt to resist the police and that there was indication of an attempt to escape or to dispose of the drugs during the time the police encountered resistance. In the premises, I shall order the 1 month’s imprisonment of Count 3 be consecutive to that of the combined sentence of Count 1 and Count 2, therefore it leads to a term of imprisonment of 24 years and 10 months’ imprisonment.

Concerning D2, as stated above in relation to D1, given the relatively small quantity of the other types of drugs, I will not enhance the sentence. However, an enhancement of 1 year shall be imposed due to D2’s Form 8 status. Hence the starting point of Count 2 against D2 shall be one of 14 years and 10 months’ imprisonment.

Lastly, I have to stand back and observe the overall sentence to ensure it is fair, balanced and just in all circumstances of the offence and the offender; to ensure that it is not a crushing sentence.

In approaching the sentence of D1 in the final step as propounded in Herry Jane Yusuph, D1 was found guilty after trial, I have considered the overall sentence,

the quantity of drugs, the sentence of Count 3 and the facts of the case. Standing back, no doubt D1 is going to serve a very significant term of imprisonment, but a severe or harsh sentence is not by reason alone necessarily unfair, imbalanced or unjust. I fail to see any mitigating factor that allows me to reduce the sentence to be served by D1.

Therefore, D1 shall serve an overall sentence of 24 years and 10 months’ imprisonment.

Concerning D2, the starting point I adopted in respect of Count 2 is that of 14 years and 10 months’ imprisonment. D2 filed notice of objection against the admissibility of the caution interviews, but only pleaded guilty during the arraignment stage, and that on day 2 of the hearing, Ms Alva informed this court of the difficulty she encountered in communicating with D2, and that D2 was initially not ready to admit the facts which were prepared over the night by the prosecution, due to his sudden change of plea.

It was fairly accepted by Ms Alva that D2 is not entitled to the full one-third discount. As held in Ngo Van Nam, the discount afforded to the defendant in a similar situation as this, would at most be 20 percent, save for exceptional circumstances. In these circumstances, I will still exercise my discretion in giving a 20 percent discount to D2. D2 is therefore sentenced to 11 years and 10 months’ imprisonment.

1^st defendant, I shall sentence you to 24 years and 10 months’ imprisonment.

2^nd defendant, I shall sentence you to 11 years and 10 months’ imprisonment.

Court adjourns – 3.59 pm

7 February 2024