HKSAR v. BAGUMA GEORGE

HCCC 189/2018

[2019] HKCFI 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 189 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of the offence are that the defendant on 13 November 2017, at Room C, 5th Floor, No. 6, Wa Fung Street, Hunghom, Kowloon unlawfully trafficked in dangerous drugs, namely 1.12 kilogrammes of a solid containing 864 grammes of cocaine and 5.01 grammes of cannabis in a herbal form.

(Discussion re interpretation)

The facts are straightforward. On 13 November 2017, the police mounted an anti-narcotics operation targeting premises on the 5th floor of that address. At about 11.38 pm, the defendant was intercepted as he came out of the said premises holding a black bag in his left hand. In that bag, the police found one plastic bag containing the cocaine of this charge and three plastic bags of which one contained the herbal cannabis. The defendant was arrested, cautioned and remained silent.

The police then conducted a house search and found an electronic scale, a roll of plastic bags and one mobile phone. Inside a left shoe they found HK$110,000 in cash. When he was arrested, the defendant was in possession of $8,408 and two mobile phones.

In mitigation, I heard the defendant is 41 years old and from Uganda. He is an asylum seeker, having arrived in Hong Kong on 5 March 2017 and overstaying from 4 April 2017. He surrendered himself to the Immigration Department and claimed asylum. He is married with three young children under 10 and his parents are deceased. He has a clear record in Hong Kong but that is of little weight considering he is not a Hong Kong resident nor has he been here very long.

In a subsequent video-recorded interview, the defendant explained that he had befriended a man at Chungking Mansions. The defendant agreed to go to these premises in Hunghom and collect a black bag left on a table. He was given $8,400 and on the evening of 13 November 2017, he was asked to go to these premises to retrieve that black bag. He was given keys to collect that bag. He did look inside the bag and saw white substance but did not know what it was. His instructions were to then catch a taxi and call that male who would then direct the taxi driver where to go. He did not ask what was inside the black bag. He had no knowledge of the mobile phone, electronic scale and the large amount of cash found inside his shoe. Those items did not belong to him.

It is part of the defendant’s mitigation that he provided two non-prejudicial statements to assist the police to arrest the man he says recruited him. He only provided the police with a name and telephone number of that male who gave him the money and those instructions. That man was arrested and it would appear that a file was opened and sent to the Department of Justice for legal advice. The legal advice received from the Department of Justice was that there was insufficient evidence to proceed against this man. Mr Arthur urges this court to exercise its discretion and consider a discount for the defendant’s attempt to assist the police.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.

The total quantity of cocaine involved is 864 grammes. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in the R v Lau Tak Ming [1990] 2 HKLR 317 are applicable to cases of trafficking in cocaine. However, R v Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLR 437, the Court of Appeal set out further guidelines for cases involving larger quantities. It was held that for cases involving narcotic content of 600 to 1,200 grammes, a term of imprisonment of 20 to 23 years’ imprisonment should be considered. In this case, mathematically speaking, the cocaine involved should attract a starting point of 21 years and 4 months.

I have considered everything Mr Arthur has told me in mitigation. In all the circumstances and considering here there is 864 grammes, I am of the view that a starting point of 21 years is appropriate to reflect that amount of cocaine and to reflect the nature and seriousness of the offence. The herbal cannabis is of a very small quantity especially compared to the cocaine, and I do not intend to take it into account in the sentencing process.

However, there is an aggravating factor and that is the defendant is a non-refoulement claimant trafficking cocaine. The Court of Appeal has endorsed an enhancement of sentence for this serious breach of trust and privilege by a person not normally entitled to be in Hong Kong, someone like the defendant who is here on the strength of a Form 8. This crime not only affects the community at large but has an obvious impact on Hong Kong’s reputation. It was not committed by a Hong Kong resident but by a person not normally entitled to be here and is only permitted to remain at liberty within the Hong Kong community whilst his torture claim is being processed.

I have referred myself to the authority of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 which endorses the enhancement. I note also that in a recent decision of the Court of Appeal, HKSAR v Ali Saif, CACC 309/2017, Macrae VP elaborated and said:

“When Shah Syed Arif was decided, the court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognisance holders for trafficking-in-dangerous-drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in a case before the District Court or the High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognisance holders, whose non‑refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

That observation clearly applies in this case. I have considered the amount of drugs and the facts of this case. I find an enhancement of 12 months to be appropriate. The starting point becomes one of 22 years.

There is one other mitigating factor submitted by Mr Arthur. I was informed by Mr Arthur that the defendant has actively assisted Father Wotherspoon in his worthy and relentless campaign. I have a letter dated 22 February 2019 from Father Wotherspoon, outlining the defendant’s contribution to his anti-drug campaign.

Mr Arthur has also referred me to several similar cases in the High Court where a discount of between 6 to 9 months from the starting point has been given for similar assistance by other drug traffickers. He submits that that range of discount should apply here. I have also referred myself to HKSAR v Kilima Abubakar Abbas, CACC 143 of 2016 where in a judgment dated 18 September 2018, a majority of the Court of Appeal said in no uncertain terms that in sentencing, a judge was entitled to afford the defendant a discount of 3 months’ imprisonment for this fact of mitigation. That level of discount is to be regarded as the maximum discount to be afforded in similar circumstances. I quote Macrae VP at paragraph 91:

“This court, comprising both of my colleagues on this appeal, has already twice said that post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the Executive. I consider that is right for the reasons they have given and that this court should adhere to its earlier decisions on this matter. Nevertheless, I would still permit sentencing judges a discretion to allow a token discount for this factor. Although such contributions to Father Wotherspoon’s ‘campaign’ do not amount to either positive good character nor are they readily borne of remorse, it seems to me that it may still be in the public interest to encourage a prisoner’s efforts in this regard. That assessment must be in the absolute discretion of the court, an exercise with which this court will not likely interfere. I cannot for myself envisage any circumstances which might warrant a deduction of more than 3 months for this factor.”

Paragraph 92:

“As I have said, the discount for this factor, if it is considered at all, should be no more than a token one. We must not forget that trafficking in dangerous drugs is a crime of the utmost gravity.”

I have considered the defendant’s contribution and participation in the campaign and find a deduction of 3 months from that enhanced starting point appropriate. Therefore, the starting point becomes one of 21 years and 9 months.

The defence also submits that the defendant’s attempt to assist the police post-arrest should be considered a mitigating factor and merits some discount. What is relevant is the nature and extent of the assistance and whether it actually assisted the authorities. Although the information was not useful and no other drug trafficker was successfully charged as a result of his information, arrested persons should be encouraged to assist the police. I will therefore reduce that starting point by a further 6 months. The starting point now becomes one of 21 years and 3 months.

Defendant, please stand up. The defendant has pleaded guilty at the earliest opportunity and is entitled to a full discount. After that one-third discount of 7 years and 1 month is applied, for this offence of trafficking in a dangerous drug, the defendant is sentenced to 14 years and 2 months’ imprisonment.