HKSAR v. JOOF SAIHOU

HCCC 163/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 163 OF 2016

-----------------

-----------------

---------------------------------

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

---------------------------------

Background and the Facts

On 10 April 2017, the defendant pleaded guilty before me to one count of trafficking in a dangerous drug and he accepted the prosecution’s Summary of Facts.

Briefly, the facts revealed that on 8 October 2015, the defendant was observed by some plainclothes police officers to be acting suspiciously while he was outside the shopping mall K11. When the police called out, the defendant made an attempt to flee and there was a struggle but he was subsequently restrained.

Upon a search, it was found that the plastic bag which the defendant was carrying at the time was found to contain a Lipton paper box and a Nescafé paper box, inside which were a total of 45 pellets of suspected drugs. The drugs were later confirmed to be a total of 893 grammes of a solid containing 397 grammes of cocaine.

During a later video-recorded interview, the defendant stated that he was a recognisance holder and is of Gambian origin. He came to Hong Kong on 11 December 2014. The defendant further said that the plastic bag was given to him by a friend.

The drugs seized had an estimated retail value of about HK$950,000.

Defendant’s Background and Mitigation

The defendant is now aged 29 and is a Gambian national. He was educated up to grade 10 in his home country and he worked as a factory worker. He is married and still maintains his contact with his wife and his mother. The defendant came to Hong Kong in 2014 legally. Upon arrival, he applied for asylum and he has since been given a recognisance to stay. The defendant did not have any previous criminal convictions in Hong Kong nor in Gambia.

In mitigation, Mr McGowan, for the defendant, told the court that the defendant has not had any dealings with dangerous drugs before. It was merely out of his loyalty to friends that he now has to come before the court to face his sentence. It was said that the person cultivated friendship with the accused and together with another person named Happy, groomed him into delivering the drugs in this case. In particular, Mr McGowan asked this court to take into account the fact that the defendant has tried to offer assistance, albeit that it did not lead to anything, and that he was trapped into this drug delivery.

Sentencing Considerations

The tariffs for trafficking in cocaine were the same as those for heroin, see AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming & Others [1990] 2 HKLR 370. For trafficking between 200 and 400 grammes of cocaine, a term of 12 to 15 years’ imprisonment is called for. Having considered the facts of this case and the amount of the drugs involved, I take the view that the appropriate starting point should be one of 15 years.

The defendant in this case is a recognisance holder and yet, while he was permitted to stay in Hong Kong pending the processing of his claim, he committed the present offence, abusing the hospitality shown and the privilege given to him by the Hong Kong community. This is clearly an aggravating factor. See for example HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Fitri, CACC 265/2016 (5 April 2017, unreported).

For this aggravating factor, I am going to increase the initial starting point by 1 year, making it a term of 16 years.

The Sentence

The defendant pleaded guilty; he would receive a one-third reduction for that. In respect of the said willingness to assist, the position is clear. That is, the approach in this jurisdiction is not to accord credit for information which in the event bears no fruit. See for example HKSAR v W, CACC 10/2011 (16 September 2013, unreported).

As regards the alleged entrapment, I see no reason for that to be a basis for reduction. In this case, the defendant took the plastic bag, knowing that it contained dangerous drug and continued trying to deliver it.

Insofar as the defendant’s personal circumstances are concerned, such is not a mitigating factor which could entitle him to any reduction in sentence in this type of serious offences. Therefore, other than the one-third reduction which I have mentioned, there is nothing which would warrant any further reduction in sentence.

Sixteen years reduced by one-third is 10 years and 8 months’ imprisonment. This is the term I impose on the defendant in respect of the offence to which he has pleaded guilty.