|
DCCC 407/2018
[2018] HKDC 1408
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 407 OF 2018
____________
| |
HKSAR |
|
| |
v |
|
| |
SITOE CLAUDIO MARCELINO |
|
____________
| Present: |
Mr Raymond H.M. Chan, PP, of the Department of Justice, for HKSAR
Mr Amirali Bakirali Nasir of Nasirs, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
REASONS FOR SENTENCE
1. The defendant, a Form 8 holder from Mozambique, pleads guilty to one charge of trafficking in 8.18 kilogrammes of cannabis in herbal form, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. Full particulars of the offence are set out in the facts admitted by the defendant. In summary on 1 December 2017 customs officers at the DHL Central Asia Hub in the Hong Kong International Airport detected a suspicious parcel sent from Johannesburg, South Africa.
3. Inspection of the parcel revealed 8.18 kilogrammes of cannabis in herbal form, valued at $2,265,860[2]. Photographs of the parcel have been submitted to court.
4. The parcel was addressed to Mr Austin Joseph at the address No. 615 Lin Fa Tei, Kam Sheung Road, Yuen Long and with the phone number 6492 8551.
5. The same day customs officers mounted a controlled delivery. A customs officer disguised as a courier of DHL called 6492 8551 but nobody answered the call.
6. The next day DHL received a call from someone claiming to be the recipient of the parcel and who requested the parcel to be delivered in the afternoon. On arrival at the village the customs officer disguised as a courier of DHL called 6492 8551. The defendant soon appeared and approached the customs officer.
7. The defendant said he wanted to collect the parcel for his friend and produced a written paper stating correctly the parcel’s airway bill number and the recipient’s name, address and phone number[3]. When the customs officer called 6492 8551 to verify the defendant’s identity as the recipient, the defendant’s Nokia mobile phone rang.
8. The defendant was arrested after he signed in the recipient’s name and took delivery of the parcel. The Nokia mobile phone and an iPhone were seized from the defendant.
9. The telephone number of the sim card in the Nokia phone was 6492 8551 and telephone records showed the number had been used to call the DHL hotline twice on 2 December 2017. WhatsApp messages on the iPhone showed the defendant on 30 November 2017 discussing the arrival of tobacco in one or two days.
10. Under caution the defendant claimed he was collecting the parcel for his friend “Ugo”, who he would ask to collect the parcel afterwards.
Mitigation
11. In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Nasir both in his written submission and in court, including that the defendant was cooperative with the police and assisted the police in arresting “Ugo”.
Guidelines
12. In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing[4]. Where the quantity of cannabis resin is over 6000 grammes and less than 9000 grammes the sentence after trial is between 3 and 4 years’ imprisonment.
13. The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin and that any adjustment should be within the range dictated for cannabis resin and that persons with herbal cannabis could be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin[5].In HKSAR v Kwang Sau Fan the Court of Appeal said that there is no directive that the reduction mustbe one year[6].
14. Mr Nasir has referred the court to the reasons for sentence in HKSAR v Rai Sumdi Bung & others, which concerned the importation of 9.424 kilograms of cannabis[7]. I note the cannabis in that case was cannabis resin.
15. Mr Nasir submits that the defendant should be sentenced as if he had 2.045 kg of cannabis resin, cannabis resin having an average concentration of tetrahydrocannabinol of about four times higher than herbal cannabis[8].
16. I have no hesitation in rejecting this submission. The Court of Appeal made clear in Tuen Shui Ming that sentence was based on the total cannabis seized and not the concentration of tetrahydrocannabinol and that adjustment was to be made where the cannabis was in herbal form[9].
17. This is also made clear in R v Chong Chak On which has very fairly been referred to the court by Mr Nasir[10]. The Court of Appeal specifically stated that the guidelines make it clear that sentence is governed by the weight of the herbal cannabis and that the tetrahydrocannabinol content is relevant only insofar as it allows a court to take a more lenient view of herbal cannabis. Although Chong Chak On concerned the guidelines in place before Tuen Shui Ming the basis of sentence was the same.
18. The same approach to sentence can also be seen for example in Secretary for Justice v Lee Siu Kei[11] and HKSAR v Kwang Sau Fan[12] (both also referred to the court by Mr Nasir) and in HKSAR v Touray Edrisa[13].
19. I am satisfied the appropriate starting point after trial for trafficking in 8.18 kilograms of cannabis resin is 3 years and 8 months’ imprisonment. The cannabis being in herbal form I adjust the starting point by 8 months to 3 years’ imprisonment.
Aggravating features
International element
20. The importation of cannabis into Hong Kong adds an international element to the offence and is an aggravating feature of sentence.
21. When the court asked to be addressed on the issue of international element Mr Nasir submitted that the defendant being a Form 8 holder could not be the owner of the cannabis and therefore there was no international element. In further written submissions Mr Nasir submits, inter alia, that the defendant was not involved in the shipment and there should therefore be no enhancement for international element[14].
22. I have no hesitation in rejecting this submission. Whether or not the defendant’s role was limited to receipt of the parcel, the defendant was the first person receiving the drugs on their importation into Hong Kong. The written paper the defendant gave to the customs officer to collect the parcel contained, inter alia, the correct airway bill number.
23. The defendant was collecting the parcel, knowing the drugs had come from overseas. I enhance the starting point by 3 months to 3 years and 3 months’ imprisonment.
Commission of offences by refugees or torture claimants
24. The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. Trafficking in drugs clearly affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.
25. Mr Nasir submits that a 3 months enhancement is appropriate[15]. In HKSAR v Ali Saif the Court of Appeal said that for a serious offence of trafficking in drugs before the District Court or High Court they would not expect an enhancement for this factor to be less than 6 months’ imprisonment[16].
26. I am satisfied that trafficking in 8.18 grammes of cannabis in herbal form valued at $2,265,860 is a serious offence of trafficking and further enhance the starting point by 6 months to 3 years and 9 months’ imprisonment.
27. Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 6 months’ imprisonment.
Assistance to authorities
28. Mr Nasir submits that the defendant should be given additional discount for his assistance to the police which led to the arrest of “Ugo” [17].
29. Before passing sentence I required the parties to address me further on the assistance said to be given by the defendant and whether any such assistance was in connection with a controlled delivery to Ugo[18].
30. In summary Mr Nasir told the court that after the defendant was arrested he took customs officers to Ugo’s address and pointed out Ugo’s room, however Ugo was not there. The defendant was then taken to the airport where he unlocked his iPhone. The defendant showed to the customs officers photographs of Ugo and messages between Ugo and himself.
31. Mr Chan helpfully outlined a chronology of events. In summary after the defendant was arrested the defendant was taken for a house search in a nearby village. The defendant said Ugo lived in the same village and led customs officers to arrest Ugo but Ugo was not at home. Mr Chan explained that the defendant only led the officers to arrest Ugo and the officers did not take the parcel with them to deliver to Ugo, albeit the parcel was nearby in the custody of other customs officers.
32. After the defendant was taken to the airport for investigation, Mr Chan confirmed that the defendant consented to a search of his iPhone and the Nokia phone and showed the police photographs of Ugo and various messages.
33. On 4 January 2018 Ugo was arrested. The written document provided by the defendant when claiming the parcel, was written on the reverse of an Immigration document[19]. The full name of Ugo was on the document from which the customs officers were able to trace Ugo, who was also a Form 8 holder. Ugo was arrested when he reported to the Tuen Mun Immigration Centre. Mr Chan confirms that when customs officers went to arrest Ugo they took with them the photographs of Ugo found on the defendant’s iPhone.
34. Ugo was placed on police bail and released from bail on 13 April 2018 when legal advice was given by the Department of Justice that there was insufficient evidence to prosecute Ugo.
35. Mr Chan informs the court that the advice was given without considering approaching the defendant to see if he would give a non-prejudicial statement. The defendant has said he is still willing to assist the police but asks that he be sentenced today.
36. In reply Mr Nasir referred the court to a witness statement made by Inspector Lam dated 5 December 2017, in particular paragraph 5 in which mention is made of the defendant attempting to call Ugo to collect the parcel. The defendant called three different numbers but all the numbers were found unavailable.
37. Although the defendant led the customs officers to arrest Ugo, Mr Nasir accepts that the drugs were not taken and that there was no attempted delivery of the parcel at that time.
38. In paragraph 5 mention is also made of the defendant denying knowledge of the content inside the parcel. After taking further instructions Mr Nasir confirmed that the defendant accepts he had knowledge of the content of the parcel, which is consistent with his plea of guilty.
39. Although attempts were made by telephone to call Ugo to collect the parcel, when the defendant led the customs officers to arrest Ugo there was no attempted delivery of the parcel to Ugo by the defendant. Apart from the unsuccessful phone calls I am satisfied that on the information placed before the court there was no controlled delivery of the parcel to Ugo.
40. In HKSAR v Kilima Abubakar Abbas the Court of Appeal reviewed a number of cases involving assistance falling short of a controlled delivery. Sentence was adjourned to today for Mr Nasir to consider the authorities, including HKSAR v Kilima Abubakar Abbas referred to him by the court.
41. Today Mr Nasir submits a further written submission which sets out the chronology of events with emphasis on the assistance provided by the defendant leading to the arrest of Ugo[20]. Mr Nasir submits that the defendant should be entitled to a discount for this assistance[21] and asks for an additional 5% discount.
42. I am satisfied there are some similarities with the cases where a slight additional discount was given, for example the information provided by the defendant led to the identification of Ugo[22] and that the defendant made phone calls in an attempt to effect a controlled delivery, albeit the numbers were all unavailable[23].
43. In all the circumstances I am satisfied that a slight additional discount is also appropriate and further reduce the sentence by 2 months. The defendant is convicted and sentenced to 2 years and 4 months’ imprisonment.
Suspended sentence
44. On 2 November 2016 the defendant was sentenced in the Shatin Magistracy to 2 weeks’ imprisonment suspended for 3 years for an offence of breach of condition of stay[24]. The offence of trafficking in drugs was committed during the operational period of the suspended sentence.
45. I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence with the original term unaltered. Considering totality of sentence, I am satisfied that it would be just to activate the suspended sentence consecutive to the sentence for trafficking in a dangerous drug making a total sentence to be served by the defendant of 2 years and 4 months and 2 weeks’ imprisonment.
| |
(D. J. DUFTON) |
| |
District Judge |
[1] Cap 134.
[2] Mr Chan confirmed in court that the value was the value for herbal cannabis.
[3] The written paper is shown in photograph 13. A copy was also submitted to court by Mr Nasir.
[4] [1995] 2 HKCLR 129.
[5] The Court of Appeal said that an exception may be in cases where very large amounts are involved.
[6] [2002] 4 HKC 184.
[7] DCCC 294/2017.
[8] See §§11-13 & 19-21 of Mr Nasir’s written submission.
[9] SeeAttorney General v Tuen Shui Ming at 802E and 805B.
[10] [1996] 1 HKC 152 at page 164E.
[11] [2006] 1 HKC 499
[12] [2002] 4 HKC 184.
[13] CACC 124/2010
[14] See §37 of the further written submission of Mr Nasir.
[15] See §22 of Mr Nasir’s written submission.
[16] CACC 309/2017. Also see HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 which is referred to in HKSAR v Ali Saif.
[17] See §26 of Mr Nasir’s written submission as read with §2.
[18] In §26 Mr Nasir refers to §§10-16 of the Amended Summary of Facts dated 12 November 2018. Before plea was taken I enquired whether everything in the Amended Summary of Facts, which was prepared for plea day, should be included, in particular everything the defendant said under caution and reference in messages alluding to drug trafficking not the subject of the charge. I asked the parties to consider further amendment of the summary of facts and emphasised any deletion of what the defendant said under caution should only be made if the defence did not require those parts to be included in the summary of facts. The summary of facts was amended and reference to what the defendant said under caution was largely removed. Mr Nasir’s written submission was prepared before this amendment. Regrettably Mr Nasir did not request §§10-16 to remain in the amended summary of facts.
[19] Mr Nasir produced a copy of this document during his address on assistance given by the defendant.
[20] See §§1-16 of the further submissions of Mr Nasir.
[21] See §17 of the further submissions of Mr Nasir.
[22] See HKSAR v Tsang Ka Wing CACC 97/2016.
[23] See HKSAR v Chan Ka Yiu CACC 147/2016; [2018] HKCA 410.
[24] ST 4285/2016.
|