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DCCC 24/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 24 OF 2017
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HKSAR |
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CEESAY SULAYMAN K. |
(D1) |
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BARROW LAMIN |
(D2) |
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| Present: |
Mr Kevin K.W. Wong, counsel on fiat, for HKSAR
Mr Andrew Bullett, instructed by Leung & Lau,
assigned by the Director of Legal Aid, for D1
Mr James Sherry, instructed by K.Y.Woo & Co,
assigned by the Director of Legal Aid, for D2
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| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
REASONS FOR SENTENCE
1. D1 pleads guilty to two charges of trafficking in a dangerous drug (charges 1 & 2) and D2 pleads guilty to one charge of trafficking in a dangerous drug (charge 3), contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. Full particulars of the offences are set out in the facts admitted by the defendants on 23 June 2017. In summary on two separate occasions in June last year D1 supplied cocaine to an undercover police officer.
3. On 1 June 2016 D1 supplied to the undercover police officer 10 plastic bags containing a total of 3.69 grammes of a powder containing 2.36 grammes of cocaine(charge 1). On 24 June 2016 D1 supplied to the same undercover police officer 21 plastic bags containing a total of 5.10 grammes of a powder containing 3.32 grammes of cocaine(charge 2).
4. On 11 August 2016 D2 supplied to the same undercover police officer 2 plastic bags containing cocaine. One plastic bag contained 9.79 grammes of a solid containing 3.01 grammes of cocaineand the other bag contained5.61 grammes of a powder containing 1.23 grammes of cocaine(charge 3).
5. Both defendants were arrested on 18 August 2016.
Starting point
6. The courts have equated for sentencing purposes cocaine with heroin[2]. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3]. The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.
D1
Mitigation
7. In passing sentence, I have carefully considered everything said on your behalf by Mr Bullett, including that since leaving The Gambia your wife has left you and moved to the UK. The children of the family aged 14 and 8 were then looked after by your mother, who has since sadly passed away. Under stress and worry about your children you started to smoke cannabis and became involved in the present offences.
Sentence
8. I am satisfied the proper starting point after trial for 2.36 grammes of cocaine, based on quantity alone, is 2 years and 9 months’ imprisonment and for 3.32 grammes of cocaine is 3 years’ imprisonment.
9. You are a Form 8 recognizance holder. 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. I am satisfied that trafficking in a dangerous drug is an offence which affects the community and reputation of Hong Kong[4]. In the circumstances I enhance the starting points by 3 months to 3 years and 3 years and 3 months’ imprisonment respectively.
Discount for pleading guilty
10. You first appeared in the District Court on 2 February 2017 when a plea of not guilty to the charges was indicated and a trial date set down for 21 June 2017. The new sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[5].
11. Mr Bullett says that when a plea of not guilty was indicated on plea day you had only been seen by a clerk from the Legal Aid Department; had not received any legal advice; had not been explained the new sentencing practice and had not been seen by Legal Aid counsel.
12. What is clear however is that you were made aware of the new sentencing guidelines. Mr Bullett informs the court that when the Legal Aid clerk visited you on 17 January to take your initial instructions you acknowledged receipt of an important notice about the revised practice in giving discount, a notice you say you have lost. You also signed to acknowledge that you understood that if you maintained a not guilty plea at that stage you would lose the full one-third discount in sentencing as a result[6].
13. I am satisfied you are not entitled to the full one-third discount. The court was first informed of a plea of guilty on the morning of the first day of trial. In the afternoon Mr Wong confirmed an offer to plead guilty to two charges was accepted by the prosecution. Mr Wong further informed the court that in the week prior to trial an approach was made on your behalf to plead guilty to the two charges, however, due to some apparent misunderstanding on the part of the prosecution that offer was not accepted prior to trial.
14. The offer to plead guilty being made after Mr Bullett and his instructing solicitors were assigned to the case on 7 June and prior to trial, albeit very close to the start of the trial, I am satisfied a discount of 25%, as opposed to 20% for pleading guilty on the first day of trial, is appropriate.
15. This reduces the sentence on charge 1 to 2 years and 3 months’ imprisonment and on charge 2 to 2 years and 5 months’ imprisonment (which is just over 25% discount).
Totality
16. Mr Bullet submits concurrent sentences should be imposed, the offences being separated by only a matter of weeks. I disagree. Subject to totality sentence must reflect there were two separate occasions when cocaine was supplied[7].
17. I order 12 months of the sentence on charge 2 to be served consecutively making an overall sentence of 3 years and 3 months’ imprisonment, which I am satisfied properly reflects your overall criminal culpability on the two charges[8].
18. You are convicted and sentenced as follows:
Charge 1 – 2 years and 3 months’ imprisonment; and
Charge 2 – 2 years and 5 months’ imprisonment with 12 months consecutive and 17 months concurrent to charge 1.
Total sentence to be served by you is 3 years and 3 months’ imprisonment.
D2
Mitigation
19. In passing sentence, I have carefully considered everything said on your behalf by Mr Sherry, including that you only became involved in the drug scene after arriving in Hong Kong under the influence of other torture claimants from The Gambia. I take into account you have no previous convictions.
Sentence
20. I am satisfied the proper starting point after trial for 4.24 grammes of cocaine, based on quantity alone, is 3 years and 3 months’ imprisonment.
21. You are also a Form 8 recognizance holder. Mr Sherry refers the court to HKSAR v Norena Gutierrez Cristhian Andres[9]where I enhanced the starting point by 3 months. Mr Sherry submits a lower enhancement is appropriate as the amount of cocaine involved is less, namely 4.24 grammes as opposed to 5.41 grammes. I am satisfied an enhancement of 3 months is also appropriate thereby increasing the starting point to 3 years and 6 months’ imprisonment.
Discount for pleading guilty
22. You also first appeared in the District Court on 2 February 2017 when a plea of not guilty to the charges was indicated and a trial date set down for 21 June 2017.
23. Mr Sherry accepts that you were informed of the new sentencing practice and also referred the court to you having signed to acknowledge that you understood that if you maintained a not guilty plea at that stage you would lose the full one-third discount in sentencing as a result.
24. The court was first informed of a plea of guilty on the morning of the second day of trial. Mr Sherry informs the court that after the court adjourned on the first day an offer to plead guilty was made to the prosecution, which offer was rejected by the prosecution. A counter offer was however made by the prosecution resulting in your pleading guilty to charge 3.
25. Mr Sherry submits therefore that there has been a change in position of the prosecution and that if this offer had been made earlier you may have pleaded guilty earlier. Mr Sherry submits in these circumstances you should be given the full one-third discount.
26. I have no hesitation in rejecting this submission. The first indication that you may plead guilty to any charge was on the first day of trial after the court adjourned. Unlike the case of D1 I have not been told of any discussions with the prosecution of a plea of guilty prior to trial.
27. I am satisfied you are not entitled to the full one-third discount. Although the court was first informed of the plea on the second day of trial the plea having been entered before the trial started, I am satisfied you are entitled to a discount of 20%.
28. You are convicted and sentenced to 2 years and 9 months’ imprisonment, which is just over 20%.
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(D. J. DUFTON)
District Judge
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[1] Cap 134.
[2] See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
[3] [1990] 2 HKLR 370.
[4] See HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013 as applied in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014.
[5] [2016] 5 HKLRD 1.
[6] The reference to signing acknowledgement of losing the one-third discount was first mentioned by Mr Sherry. During Mr Bullet’s mitigation Mr Sherry assisted the court by referring to a Legal Aid form. Mr Sherry read out the full acknowledgement which was: “I understand if I maintain a not guilty plea at this stage I will lose the full one-third discount in sentencing as a result. I gave the above instruction voluntarily.” After Mr Bullett and Mr Sherry finished their mitigation I stood down the case so that Mr Bullett could take further instructions on whether D1 was informed of the revised sentencing practice. After taking further instructions Mr Bullett informed the court that the defendant had signed to acknowledge receipt of the important notice and signed to acknowledge he would lose the one-third discount if he maintained a not guilty plea. Mr Bullett said this was item 16 of the form entitled “Pleas”.
[7] See HKSAR v Pau King Kong [2013] 3 HKLRD 676 at §34.
[8] See for example HKSAR v Muhammad Riaz Awan CACC 135/2010 where the Court of Appeal held that the court was entitled to order one year of the sentences on each of two other offences of supplying drugs to an undercover police officer to run consecutively to the sentence on the first charge.
[9] See HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013 as applied in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014.
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