HKSAR v. SOHNA SAIT AND ANOTHER

DCCC 506/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 506 OF 2015

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to six counts of trafficking dangerous drugs. The 2nd defendant has pleaded guilty to two counts of trafficking in dangerous drugs, Charges 3 and 4, where he and the 1st defendant are jointly charged.

2.  Between 15 January and 28 January this year, the 1st defendant sold cocaine on six occasions to PW1, an undercover police officer.  On two occasions he was assisted by the 2nd defendant.

3.  On every occasion, PW1, the plainclothes police officer, would walk by Pacific Coffee in Fenwick Road, Wanchai either late in the evening or early in the morning.  On each occasion, the 1st defendant approached PW1 and offered to sell him cocaine at $1,000 a gramme.  On each occasion, PW1 would give him some money and buy either 1, 2 or 3 grammes and in return would be given either 1, 2 or 3 bags of cocaine. 

4.  There is no evidence that this officer, PW1, encouraged or entrapped either the 1st or 2nd defendant.  He was offered cocaine as he walked by and obviously recognised by the 1st defendant on subsequent dates and offered cocaine again.

5.  It makes sense and it is safer for the 1st defendant to offer cocaine to someone he recognises and he has sold to previously.

6.  The fact is the defendant had set up shop, so to speak, in this location and was there regularly.  The fact he was not arrested after the first time he trafficked drugs to PW1 does not garner any sympathy from me.  The police have established that he is a drug trafficker on a regular basis.  It is not a one-off transaction of someone looking to make some quick money.

7.  The quantities of cocaine here are not large. Where the 1st defendant is concerned, it is a total of 2.08 grammes of cocaine and where the 2nd defendant is concerned, it is a total of 0.52 grammes of cocaine. 

8.  The quantities, as I have said, are not significant, but the gravamen of these facts is the number of times the 1st and the 2nd defendant went to this same location to sell drugs to vulnerable people.  This area is frequented by young people, people who have been drinking, as well as people who are out looking for drugs.  There are plenty of targets and takers where the 1st and 2nd defendant positioned themselves.

9.  I am well aware of the authority R v Lau Tak Ming & others [1990] 2 HKLR 370.  This case sets out the guidelines for sentencing heroin, but those guidelines equally apply to cocaine.  What is relevant from that authority is that where someone traffics between 0 to 10 grammes, the appropriate term of imprisonment would be between 2 to 5 years.

10.  The quantity here, if it was a single charge, would in reality attract something between a 2 to 3 year starting point, depending on facts. 

11.  In this case, with the number of charges, I will take the approach of an individual starting point for individual charges, not a global approach.  I will then consider the totality principle.

12.  Both defence counsel have said as much as they can on behalf of both defendants. 

13.  Both defendants have come to Hong Kong and sought asylum after arrival.  They are Form 8 holders.  A Form 8 recognizance allows them to remain at liberty in Hong Kong whilst their claim is assessed. Both defendants have been here less than one year before they were arrested. Both come from Gambia. 

14.  The 1st defendant is 28 years old and married with a young family in Gambia.  The 2nd defendant is 29 and single.

15.  Their pleas of guilty are their best mitigation.

16.  Both have clear records but that fact carries little weight when they are not Hong Kong residents nor been here for very long.

17.  This does lead me to an aggravating factor I find exists here. 

18.  I have considered the authority, HKSAR v Shah Syed Arif, HCCC 394/2014, as well as HKSAR v Sandagdorj Altankhuyah & Anor [2014] 1 HKC 206.  The courts in those authorities were of the opinion that those that came to Hong Kong to seek asylum and then went on to commit serious crimes abused the privilege extended to them to stay in Hong Kong at liberty whilst their claims were assessed.

19.  Here, the defendants have deliberately targeted an area to sell dangerous drugs.  It is unacceptable and there is no excuse to justify this.

20.  I will take this aggravating factor into account when I consider the starting point.

21.  In addition, the fact that both defendants are not Hong Kong residents and face a term of imprisonment in unfamiliar surroundings, food and such like is not a factor I take into account either.

22.  Mr Nasir has submitted that the 2nd defendant should be entitled to more than a one-third discount because the evidence against him was weak, yet he nonetheless co-operated and pleaded guilty.

23.  With respect, I do not agree the evidence was weak and I am confident the correct inferences would have been drawn on the evidence to incriminate him in the charges.

24.  Accordingly, after considering the facts of the case, the number of charges here, the drugs involved and the quantity sold on each occasion, as well as the mitigation and pleas:

(1) for Charge 1, the 1st defendant, I take a starting point of 24 months. In explanation, the breakdown is a starting point of 18 months for this first trafficking charge, but I increased that by 6 months for the aggravating factor I earlier highlighted. Hence, a starting point of 24 months;

(2) for Charge 2, as it is the second trafficking charge, I initially took a starting point of 24 months and I added 6 months to that for the aggravating factor. The starting point is 30 months;

(3) Charge 3, likewise, 1st defendant, it is a starting point of 24 months, with 6 months added for the aggravating factor, which is a starting point of 30 months.

The 2nd defendant, I take a starting point of 18 months, as it is the first trafficking offence, but I do add 6 months for the aggravating factor and come to a starting point of 24 months;

(4) Charge 4, 1st defendant, I initially took a starting point of 24 months, to which I added 6 months for the aggravating factor and came to a starting point of 30 months.

Charge 4, the 2nd defendant, it is an initial starting point of 24 months, as it is the second trafficking charge, to which I have added 6 months for the aggravating factor, which is a total of 30 months’ starting point;

(5) Charge 5, the 1st defendant, again I took an initial starting point of 24 months, to which I added 6 months for the aggravating factor, came to a starting point of 30 months;

(6) Charge 6, again I took an initial starting point of 24 months and added 60 months for the aggravating factor and came to a total of a starting point of 30 months.

25.  The defendant pleaded guilty and are entitled to a discount of one-third.

26.  Therefore, after that discount is applied:

(1) The 1st defendant, Charge 1, you are sentenced to 16 months’ imprisonment;

(2) The 1st defendant, for Charge 2, you are sentenced to 20 months’ imprisonment;

(3) The 1st defendant, for Charge 3, is sentenced to 20 months’ imprisonment.

For the 2nd defendant, Charge 3, you are sentenced to 16 months’ imprisonment;

(4) The 1st defendant, for Charge 4, is sentenced to 20 months’ imprisonment.

The 2nd defendant is sentenced to 20 months’ imprisonment;

(5) The 1st defendant, for Charge 5, is sentenced to 20 months’ imprisonment;

(6) The 1st defendant, for Charge 6, is sentenced to 20 months’ imprisonment.

27.  I have to consider the totality principle.

28.  For Charges 5 and 6, they will be served concurrently. 

29.  Therefore, for the 1st defendant, I order that 3 months of Charge 1, 3 months of Charge 2, 4 months of Charge 3, 4 months of Charge 4, which is an additional 14 months, will be served consecutively to Charge 6, the balance concurrent.

30.  Therefore, the 1st defendant’s sentence is 2 years and 10 months.

31.  I say here that I differentiated Charges 3 and 4 because both defendants acted together in those charges to sell drugs, not alone.

32.  The 2nd defendant, I order that 4 months of Charge 3 will be served consecutively to Charge 4 and the balance concurrently. 

33.  That is a total sentence of 2 years.