HCCC108/2022 HKSAR v. KOUAME EMMANUEL AND ANOTHER - LawHero
HCCC108/2022
HKSAR v. KOUAME EMMANUEL AND ANOTHER
Court of First InstanceDHCJ Tony Li, SC6/2/2024[2024] HKCFI 688
HCCC108/2022
A HCCC 108/2022 A
[2024] HKCFI 688
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 108 OF 2022
C C
-----------------
D D
HKSAR
E v E
KOUAME EMMANUEL (A1)
F F
SALEY ZAKARI (A2)
G ------------------ G
Before: DHCJ Tony Li, SC
H Date: 7 February 2024 at 3.32 pm H
Present: Mr Ken Ng, on fiat, for HKSAR
I
Mr Oliver Howell Davies, instructed by Tsang, Chan I
& Woo Solicitors & Notaries, assigned by DLA, for
the 1st accused
J Ms Patricia Alva, instructed by Simon Si & Co, J
assigned by DLA, for the 2nd accused
Offences: (1), (2) Trafficking in dangerous drugs (販運危險藥物)
K K
(3) Obstructing a police officer in the due execution
of his duty (阻撓在正當執行職務的警務人員)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: Kouame Emmanuel, hereinafter referred to as “D1”, you
are found guilty after trial concerning two counts of
O trafficking in dangerous drugs, contrary to section 4 of O
the Dangerous Drugs Ordinance, Cap 134, Count 1 and
Count 2; and one count of obstructing a police officer
P in the due execution of his duty, contrary to section P
36(b) of the Offences against the Person Ordinance, Cap.
Q 212, Count 3. Q
Saley Zakari, hereinafter referred to as “D2”, you
R pleaded guilty to one count of trafficking in dangerous R
drugs, contrary to section 4 of the Dangerous Drugs
Ordinance, Cap 134 (2nd count) on the first day of
S S
trial, and admitted the facts relevant to the 2nd count.
It was agreed by parties that Count 3 be left in the
T court file and would not be proceeded against you T
without the court’s leave. As a result, you are
convicted as charged.
U U
CRT24/7.2.2024/TB 1 HCCC 108/2022(3)/Sentence
V V
A The particulars of the 1st count against D1 are that on A
2 April 2020, at Room 7, hereinafter as “Room 7”,
Nagaland Guesthouse, Flat D4, 17th Floor, Block D, Chung
B King Mansions, Tsim Sha Tsui in Hong Kong, hereinafter B
referred to as “the Nagaland Guesthouse”, unlawfully
trafficked in dangerous drugs, namely, 632.7 grammes of
C C
a solid containing 211.36 grammes of cocaine,
999 grammes of a crystalline solid containing 958
D grammes of methamphetamine hydrochloride and 694 grammes D
of a solid containing 306 grammes of methamphetamine.
E The particulars of the 2nd count (against both D1 and E
D2) are that on the same date, at Room 6, hereinafter
referred to as “Room 6”, Nagaland Guesthouse in Hong
F F
Kong, unlawfully trafficked in dangerous drugs, namely,
343.7 grammes of a solid containing 103.5 grammes of
G cocaine, 280 grammes of a mixture containing 217 grammes G
of heroin hydrochloride and 24 grammes of a mixture
containing 0.87 grammes of cocaine, 3.56 grammes of
H monoacetylmorphine and 0.52 grammes of heroin. H
I
The particulars of the 3rd count against both D1 and D2 I
originally it has been placed in the court file as
against D2, so it is against D1, are that on the same
J day, at Room 7, Nagaland Guesthouse, in Hong Kong, J
wilfully obstructed Law Chi-sing, a police officer of
the Hong Kong Police Force, in the due execution of his
K duty. K
L The Facts L
D2 admitted to a set of facts dated 24 January 2024
M which concerns the 2nd count. As regards the M
prosecution case against D1, the facts are consistent
with those admitted by D2, save for the parts that are
N not relevant to D2. N
O For the purpose of sentencing, in short, at 6.16 am on O
2 April 2020, the police armed with a search warrant
conducted a house search or an operation at Nagaland
P Guesthouse situated at Chung King Mansions, Tsim Sha P
Tsui, Hong Kong.
Q Q
When they reached outside Room 7, they attempted to open
the door, but they failed; they then banged on the door
R and revealed their identity by shouting in both Chinese R
and English; which was followed by a noise of broken
glass from inside Room 7, so they forced open the door
S by using a door ram to gain entry. Then in the course S
of attempting to push open the door, they encountered
resistance.
T T
Upon entry, the police officers saw two men, namely D1
U and D2. D2 was closer to the door standing and D1 was U
CRT24/7.2.2024/TB 2 HCCC 108/2022(3)/Sentence
V V
A inside the toilet standing. These two men then put up A
some struggle but were subdued by the police officers.
When both D1 and D2 were under control, the police
B officers then conducted a search inside Room 7. They B
found that the window in the toilet was broken, with
several pieces of glass fragments on the floor, and
C C
found a rucksack underneath the water basin in the
toilet, which contained dangerous drugs.
D D
It is not in dispute that dangerous drugs were found in
the rucksack inside Room 7, which forms the basis for
E Count 1. D1 was arrested. The salient search results E
are as follows:
F F
(1) 1 plastic bag contained 1 plastic bag
containing 694 grammes of a solid containing
G 306 grammes of methamphetamine; G
(2) 1 plastic bag containing 1 plastic bag
H containing 999 grammes of a crystalline solid H
containing 958 grammes of methamphetamine
I
hydrochloride; I
(3) 12 packets containing a total of 235 grammes
J of a solid containing 88.9 grammes of J
cocaine;
K (4) 1 plastic bag containing 1 plastic bag K
containing 295 grammes of a solid containing
L 70.1 grammes of cocaine; L
(5) 1 plastic bag containing 2 packets containing
M a total of 15.3 grammes of a solid containing M
7.20 grammes of cocaine;
N (6) 1 plastic bag containing 1 plastic bag N
containing a total 31.2 grammes of a solid
O containing 20.6 grammes of cocaine; O
(7) 1 plastic bag containing 1 plastic bag
P containing 19 grammes of a solid containing P
8.59 grammes of cocaine;
Q Q
(8) 1 plastic bag containing 18.2 grammes of a
solid containing 8.15 grammes of cocaine;
R R
(9) 1 plastic bag containing 19 grammes of a
solid containing 7.82 grammes of cocaine.
S S
Room 6 was also searched by another team of officers,
and amongst other things, dangerous drugs were found on
T T
a bed, which forms the basis of the 2nd count. Police
officers controlling both D1 and D2 were told of the
U search result, then they arrested both D1 and D2. U
CRT24/7.2.2024/TB 3 HCCC 108/2022(3)/Sentence
V V
A It is not in dispute that the drugs found in Room 6 are A
as follows:
B (1) 1 plastic bag containing 1 plastic bag containing 7 B
packets containing a total of 137 grammes of a
solid containing 28.1 grammes of cocaine;
C C
(2) 1 plastic bag containing 5 packets containing a
D total of 100 grammes of a solid containing D
19.8 grammes of cocaine;
E (3) 1 plastic bag containing 68.6 grammes of a solid E
containing 29.7 grammes of cocaine;
F F
(4) 1 plastic bag containing 38.1 grammes of a solid
containing 25.9 grammes of cocaine;
G G
(5) 1 plastic bag containing 1 plastic bag containing
280 grammes of a mixture containing 217 grammes of
H heroin hydrochloride; and 3 packets and 3 plastic H
bags containing a total of 24 grammes of a mixture
I
containing 0.87 grammes of cocaine, 3.56 grammes of I
monoacetylmorphine and 0.52 grammes of heroin.
J As a result of the results of the searches, D1 and D2 J
were arrested.
K The Government Chemist later examined and certified the K
dangerous drugs involved were as those particularised in
L the charges. L
Mitigation – 1st Defendant
M M
D1 is currently 36 years old. According to his evidence
and his antecedent statement, he came from Ivory Coast
N although he grew up in Nigeria. He came to Hong Kong in N
around November 2018 and became a Form 8 holder in
O December 2018. He has no criminal conviction record. O
D1 received education up to Secondary 3, he admitted at
trial that apart from receiving financial assistance
P from the ISS, he also helped some smart phone dealers to P
pack smart phones.
Q Q
D1’s only surviving family member is his 35 years old
brother, who remains in Africa.
R R
Mitigation – 2nd Defendant
S D2 was born in Nigeria in 1981. He is now 42 years old. S
He received education up to secondary level. D2 and his
wife have a 7-year-old son. D2’s mother and 5 siblings
T T
are also living in Nigeria. D2’s twin brother passed
U U
CRT24/7.2.2024/TB 4 HCCC 108/2022(3)/Sentence
V V
A away in around 2001, he then started to rely on sleeping A
pills. D2 received education up to Secondary 4, and has
no previous criminal conviction record.
B B
It was submitted that when D2 left Nigeria, his wife was
pregnant, and she is now struggling to support their
C C
son. He has been communicating with his wife during the
remand but due to depressed feelings, he stopped
D communicating for the last 3 months. D
Counsel for D2 Ms Alva asked this court to give D2 a
E 20 percent or more guilty plea discount. In this E
regards, it may be useful to set out the salient
chronology. True it is that D2 indicated his guilty
F F
plea of Count 2 in July 2022, during the committal
stage. However, as pointed out by Ms Alva, D2 changed
G his plea to not guilty regarding Counts 2 and 3 very G
soon after, hence the case was committed to this court
for trial. Ms Alva said much resources had been wasted
H by D2’s change of plea. H
I
As per directions made by this Court, grounds of I
objection against D2’s interviews were filed, and
parties were supposed to commence trial by having a voir
J dire before the empanelment of a jury. It was only when J
the arraignment was conducted that D2, not known to
Ms Alva, replied that he was guilty to Count 2. As
K such, the case was adjourned for counsel to take K
instructions and for the prosecution to amend the
L indictment and Summary of Facts so as to cater for the L
sudden change of plea.
M Sentencing Principles M
For many years, the community of Hong Kong has taken a
N severe view of drug trafficking - particularly in N
relation to drugs such as cocaine, heroin,
O methamphetamine and esters of morphine. No doubt the O
drug has terrible consequences for the individual, there
are also serious consequences for the community.
P P
The view of the community is reflected by the courts in
the nature of the sentences and levels of those
Q Q
sentences traditionally imposed for drug trafficking.
The sentencing policy underlying is to impose deterrent
R sentences. The courts have provided sentencing R
guidelines for trafficking in dangerous drugs.
S The guidelines for trafficking in heroin originated in S
R v Lau Tak Ming, which were confirmed in HKSAR v
Abdallah Anwar Abbas by the Court of Appeal. The
T T
relevant guidelines are also applicable to offences of
trafficking in cocaine and ester of morphine (see HKSAR
U U
CRT24/7.2.2024/TB 5 HCCC 108/2022(3)/Sentence
V V
A v kanfune Bashiri Rajabu and HKSAR v Matthrew Rogers A
Raphael).
B As regards the sentencing guidelines for B
methamphetamine, the sentencing guidelines are contained
in the Attorney General v Ching Kwok Hung, as amended in
C C
HKSAR v Capitania Edwin F and as revised in HKSAR v Tam
Yi Chun.
D D
In the present case, the total amount of methamphetamine
in Count 1 exceeds 600 grammes, the same tariffs as for
E heroin in HKSAR v Abdallah Anwar Abbas apply. E
Therefore, the applicable guidelines for sentencing for
F F
both Count 1 and Count 2 shall be that of Lau Tak Ming
and Abdallah Anwar Abbas.
G G
Sentences
H In respect of D1, Counts 1 and 2 be considered together. H
As submitted by Mr Davies for D1, for reason that the
I
offences were all committed on the same day and in close I
proximity, and the applicable tariffs are the same, I
will take into account the approach as stated in HKSAR v
J Wan Lau Mei, that what makes more sense and is the best J
approach is to add up all of the drugs in these 2
charges, and impose the same sentence for each charge to
K be served wholly concurrent to each other. K
L In this case, it makes more sense to approach sentences L
of both Count 1 and Count 2 by adding up all the drugs
in these 2 charges for reasons stated above and also
M that I will have to approach the overall sentence M
pursuant to the six-step propounded in the case of Herry
Jane Yusuph. However, since D1 was convicted after
N trial and there is a chance that the case be brought N
further, I am not minded to impose the same sentence for
O both Count 1 and Count 2 as stated in the case of Wan O
Lau Mei. I will however, adopt the relevant approach to
check the appropriateness of the overall starting point.
P P
Arithmetically, 211.36 grammes of cocaine would attract
12 year and 2 months’ imprisonment. Having converted
Q Q
this into the corresponding quantity of ‘Ice’, that
methamphetamine, you would give 169 grammes of ‘Ice’.
R So having done the conversion and used ‘Ice’ as the R
basis for the sentence of Count 1, you would give 1,433
grammes of ‘Ice’ (1,264 and 169 grammes). Concerning
S Count 2, the total narcotics is 325.45 grammes and given S
the trivial quantity of the ester of morphine, I will
treat the whole lot as heroin. This will then be
T T
U U
CRT24/7.2.2024/TB 6 HCCC 108/2022(3)/Sentence
V V
A converted in 246 grammes of ‘Ice’, that alone attracts a A
starting point of 13 years and 10 months’ imprisonment.
B In respect of D1, I then combine the narcotics under B
both counts, which gives rise to 1,679 grammes of ‘Ice’
(1,433 plus 246 grammes), which would achieve an initial
C C
starting point of 23 years and 6 months’ imprisonment
according to the common applicable guidelines.
D D
In respect of D2, the total quantity of dangerous drugs
involved in Count 2 is 325.45 grammes, which achieves an
E initial starting point of 13 years and 10 months’ E
imprisonment.
F F
As to the respective role played by D1 and D2, in light
of the evidence adduced, in particular the circumstances
G D1 and D2 were found, the CCTV footages of the evening G
of 1 April 2020, I find that the respective role played
by D1 and D2 was that of a mere courier or storekeeper,
H namely they belonged to the least culpable band under H
the case of HKSAR v Herry Jane Yusuph.
I I
In determining the proper starting point for D1 and D2,
I have to consider whether there are any aggravating
J factors which might require me to enhance this starting J
point. As already noted, the trafficking in this case
involves more than one type of dangerous drugs, and that
K both D1 and D2 are Form 8 holders (see HKSAR v Ali K
Saif).
L L
Concerning D1, I will enhance the initial starting point
of 23 years and 6 months for both Counts 1 and 2 by
M three months as more than one type of dangerous drug M
were involved, and another 1 year due to D1’s Form 8
status. This leads to an overall starting point of
N 24 years and 9 months. N
O In arriving at this overall starting point, I have also O
considered the individual sentences concerning Count 1
and Count 2. The initial starting point in respect of
P Count 1 alone shall be that of 23 years and 3 months’ P
imprisonment. 3 months of enhanced sentence be given
because more than one type of drug were involved and 1
Q Q
year of enhanced sentence for his Form 8 status. This
leads to an overall starting point of 24 years and
R 6 months’ imprisonment in respect of Count 1. R
As to Count 2 against D1, the same starting point of
S 13 years and 10 months’ imprisonment is applicable, I am S
minded not to enhance the sentence given the relatively
minor quantity of the other types of drugs involved, but
T T
I will enhance by 1 year due to his Form 8 status. So
the individual sentence for Count 2 is 14 years and
U 10 months’ imprisonment. U
CRT24/7.2.2024/TB 7 HCCC 108/2022(3)/Sentence
V V
A Given the approach I adopted in considering the overall A
sentence of both Counts 1 and 2, 3 months of the term of
Count 2 shall run consecutively to the term of Count 1,
B leading to a 24 years and 9 months’ imprisonment. B
D1 also faces Count 3. In view of the prosecution case,
C C
that when the police officers had broken the doorknob of
Room 7, their attempt to gain entry was resisted by
D people inside Room 7, namely, D1 and D2. It lasted for D
a few seconds. The prosecution fairly based their case
only upon the resistance part instead of the glass
E breaking and the struggling put up by D1, hence, I will E
not take into account the struggling part as well as the
glass breaking part in sentencing D1 under Count 3. In
F F
any event, I accept submissions made by Mr Davies that
no one was injured and D1 was quickly calmed down.
G G
In that case, I will adopt a starting point of 1 month’s
imprisonment concerning Count 3 against D1. In light of
H the whole of the circumstances, I will not enhance the H
sentence for D1’s Form 8 status.
I I
It was submitted that the offence under Count 3 was
essentially part of the drug trafficking offences and
J should therefore run mostly if not wholly concurrent to J
sentences of Counts 1 and 2. Despite the great effort
of Mr Davies, with respect, I do not agree. In the
K course of conducting the raid due to the information K
received by the police, D1 did attempt to resist the
L police and that there was indication of an attempt to L
escape or to dispose of the drugs during the time the
police encountered resistance. In the premises, I shall
M order the 1 month’s imprisonment of Count 3 be M
consecutive to that of the combined sentence of Count 1
and Count 2, therefore it leads to a term of
N imprisonment of 24 years and 10 months’ imprisonment. N
O Concerning D2, as stated above in relation to D1, given O
the relatively small quantity of the other types of
drugs, I will not enhance the sentence. However, an
P enhancement of 1 year shall be imposed due to D2’s Form P
8 status. Hence the starting point of Count 2 against
D2 shall be one of 14 years and 10 months’ imprisonment.
Q Q
Lastly, I have to stand back and observe the overall
R sentence to ensure it is fair, balanced and just in all R
circumstances of the offence and the offender; to ensure
that it is not a crushing sentence.
S S
In approaching the sentence of D1 in the final step as
propounded in Herry Jane Yusuph, D1 was found guilty
T T
after trial, I have considered the overall sentence,
U U
CRT24/7.2.2024/TB 8 HCCC 108/2022(3)/Sentence
V V
A the quantity of drugs, the sentence of Count 3 and the A
facts of the case. Standing back, no doubt D1 is going
to serve a very significant term of imprisonment, but a
B severe or harsh sentence is not by reason alone B
necessarily unfair, imbalanced or unjust. I fail to see
any mitigating factor that allows me to reduce the
C C
sentence to be served by D1.
D Therefore, D1 shall serve an overall sentence of 24 D
years and 10 months’ imprisonment.
E Concerning D2, the starting point I adopted in respect E
of Count 2 is that of 14 years and 10 months’
imprisonment. D2 filed notice of objection against the
F F
admissibility of the caution interviews, but only
pleaded guilty during the arraignment stage, and that on
G day 2 of the hearing, Ms Alva informed this court of the G
difficulty she encountered in communicating with D2, and
that D2 was initially not ready to admit the facts which
H were prepared over the night by the prosecution, due to H
his sudden change of plea.
I I
It was fairly accepted by Ms Alva that D2 is not
entitled to the full one-third discount. As held in Ngo
J Van Nam, the discount afforded to the defendant in a J
similar situation as this, would at most be 20 percent,
save for exceptional circumstances. In these
K circumstances, I will still exercise my discretion in K
giving a 20 percent discount to D2. D2 is therefore
L sentenced to 11 years and 10 months’ imprisonment. L
1st defendant, I shall sentence you to 24 years and
M 10 months’ imprisonment. M
2nd defendant, I shall sentence you to 11 years and
N 10 months’ imprisonment. N
O Court adjourns – 3.59 pm O
7 February 2024
P P
Q Q
R R
S S
T T
U U
CRT24/7.2.2024/TB 9 HCCC 108/2022(3)/Sentence
V V
A HCCC 108/2022 A
[2024] HKCFI 688
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 108 OF 2022
C C
-----------------
D D
HKSAR
E v E
KOUAME EMMANUEL (A1)
F F
SALEY ZAKARI (A2)
G ------------------ G
Before: DHCJ Tony Li, SC
H Date: 7 February 2024 at 3.32 pm H
Present: Mr Ken Ng, on fiat, for HKSAR
I
Mr Oliver Howell Davies, instructed by Tsang, Chan I
& Woo Solicitors & Notaries, assigned by DLA, for
the 1st accused
J Ms Patricia Alva, instructed by Simon Si & Co, J
assigned by DLA, for the 2nd accused
Offences: (1), (2) Trafficking in dangerous drugs (販運危險藥物)
K K
(3) Obstructing a police officer in the due execution
of his duty (阻撓在正當執行職務的警務人員)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: Kouame Emmanuel, hereinafter referred to as “D1”, you
are found guilty after trial concerning two counts of
O trafficking in dangerous drugs, contrary to section 4 of O
the Dangerous Drugs Ordinance, Cap 134, Count 1 and
Count 2; and one count of obstructing a police officer
P in the due execution of his duty, contrary to section P
36(b) of the Offences against the Person Ordinance, Cap.
Q 212, Count 3. Q
Saley Zakari, hereinafter referred to as “D2”, you
R pleaded guilty to one count of trafficking in dangerous R
drugs, contrary to section 4 of the Dangerous Drugs
Ordinance, Cap 134 (2nd count) on the first day of
S S
trial, and admitted the facts relevant to the 2nd count.
It was agreed by parties that Count 3 be left in the
T court file and would not be proceeded against you T
without the court’s leave. As a result, you are
convicted as charged.
U U
CRT24/7.2.2024/TB 1 HCCC 108/2022(3)/Sentence
V V
A The particulars of the 1st count against D1 are that on A
2 April 2020, at Room 7, hereinafter as “Room 7”,
Nagaland Guesthouse, Flat D4, 17th Floor, Block D, Chung
B King Mansions, Tsim Sha Tsui in Hong Kong, hereinafter B
referred to as “the Nagaland Guesthouse”, unlawfully
trafficked in dangerous drugs, namely, 632.7 grammes of
C C
a solid containing 211.36 grammes of cocaine,
999 grammes of a crystalline solid containing 958
D grammes of methamphetamine hydrochloride and 694 grammes D
of a solid containing 306 grammes of methamphetamine.
E The particulars of the 2nd count (against both D1 and E
D2) are that on the same date, at Room 6, hereinafter
referred to as “Room 6”, Nagaland Guesthouse in Hong
F F
Kong, unlawfully trafficked in dangerous drugs, namely,
343.7 grammes of a solid containing 103.5 grammes of
G cocaine, 280 grammes of a mixture containing 217 grammes G
of heroin hydrochloride and 24 grammes of a mixture
containing 0.87 grammes of cocaine, 3.56 grammes of
H monoacetylmorphine and 0.52 grammes of heroin. H
I
The particulars of the 3rd count against both D1 and D2 I
originally it has been placed in the court file as
against D2, so it is against D1, are that on the same
J day, at Room 7, Nagaland Guesthouse, in Hong Kong, J
wilfully obstructed Law Chi-sing, a police officer of
the Hong Kong Police Force, in the due execution of his
K duty. K
L The Facts L
D2 admitted to a set of facts dated 24 January 2024
M which concerns the 2nd count. As regards the M
prosecution case against D1, the facts are consistent
with those admitted by D2, save for the parts that are
N not relevant to D2. N
O For the purpose of sentencing, in short, at 6.16 am on O
2 April 2020, the police armed with a search warrant
conducted a house search or an operation at Nagaland
P Guesthouse situated at Chung King Mansions, Tsim Sha P
Tsui, Hong Kong.
Q Q
When they reached outside Room 7, they attempted to open
the door, but they failed; they then banged on the door
R and revealed their identity by shouting in both Chinese R
and English; which was followed by a noise of broken
glass from inside Room 7, so they forced open the door
S by using a door ram to gain entry. Then in the course S
of attempting to push open the door, they encountered
resistance.
T T
Upon entry, the police officers saw two men, namely D1
U and D2. D2 was closer to the door standing and D1 was U
CRT24/7.2.2024/TB 2 HCCC 108/2022(3)/Sentence
V V
A inside the toilet standing. These two men then put up A
some struggle but were subdued by the police officers.
When both D1 and D2 were under control, the police
B officers then conducted a search inside Room 7. They B
found that the window in the toilet was broken, with
several pieces of glass fragments on the floor, and
C C
found a rucksack underneath the water basin in the
toilet, which contained dangerous drugs.
D D
It is not in dispute that dangerous drugs were found in
the rucksack inside Room 7, which forms the basis for
E Count 1. D1 was arrested. The salient search results E
are as follows:
F F
(1) 1 plastic bag contained 1 plastic bag
containing 694 grammes of a solid containing
G 306 grammes of methamphetamine; G
(2) 1 plastic bag containing 1 plastic bag
H containing 999 grammes of a crystalline solid H
containing 958 grammes of methamphetamine
I
hydrochloride; I
(3) 12 packets containing a total of 235 grammes
J of a solid containing 88.9 grammes of J
cocaine;
K (4) 1 plastic bag containing 1 plastic bag K
containing 295 grammes of a solid containing
L 70.1 grammes of cocaine; L
(5) 1 plastic bag containing 2 packets containing
M a total of 15.3 grammes of a solid containing M
7.20 grammes of cocaine;
N (6) 1 plastic bag containing 1 plastic bag N
containing a total 31.2 grammes of a solid
O containing 20.6 grammes of cocaine; O
(7) 1 plastic bag containing 1 plastic bag
P containing 19 grammes of a solid containing P
8.59 grammes of cocaine;
Q Q
(8) 1 plastic bag containing 18.2 grammes of a
solid containing 8.15 grammes of cocaine;
R R
(9) 1 plastic bag containing 19 grammes of a
solid containing 7.82 grammes of cocaine.
S S
Room 6 was also searched by another team of officers,
and amongst other things, dangerous drugs were found on
T T
a bed, which forms the basis of the 2nd count. Police
officers controlling both D1 and D2 were told of the
U search result, then they arrested both D1 and D2. U
CRT24/7.2.2024/TB 3 HCCC 108/2022(3)/Sentence
V V
A It is not in dispute that the drugs found in Room 6 are A
as follows:
B (1) 1 plastic bag containing 1 plastic bag containing 7 B
packets containing a total of 137 grammes of a
solid containing 28.1 grammes of cocaine;
C C
(2) 1 plastic bag containing 5 packets containing a
D total of 100 grammes of a solid containing D
19.8 grammes of cocaine;
E (3) 1 plastic bag containing 68.6 grammes of a solid E
containing 29.7 grammes of cocaine;
F F
(4) 1 plastic bag containing 38.1 grammes of a solid
containing 25.9 grammes of cocaine;
G G
(5) 1 plastic bag containing 1 plastic bag containing
280 grammes of a mixture containing 217 grammes of
H heroin hydrochloride; and 3 packets and 3 plastic H
bags containing a total of 24 grammes of a mixture
I
containing 0.87 grammes of cocaine, 3.56 grammes of I
monoacetylmorphine and 0.52 grammes of heroin.
J As a result of the results of the searches, D1 and D2 J
were arrested.
K The Government Chemist later examined and certified the K
dangerous drugs involved were as those particularised in
L the charges. L
Mitigation – 1st Defendant
M M
D1 is currently 36 years old. According to his evidence
and his antecedent statement, he came from Ivory Coast
N although he grew up in Nigeria. He came to Hong Kong in N
around November 2018 and became a Form 8 holder in
O December 2018. He has no criminal conviction record. O
D1 received education up to Secondary 3, he admitted at
trial that apart from receiving financial assistance
P from the ISS, he also helped some smart phone dealers to P
pack smart phones.
Q Q
D1’s only surviving family member is his 35 years old
brother, who remains in Africa.
R R
Mitigation – 2nd Defendant
S D2 was born in Nigeria in 1981. He is now 42 years old. S
He received education up to secondary level. D2 and his
wife have a 7-year-old son. D2’s mother and 5 siblings
T T
are also living in Nigeria. D2’s twin brother passed
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A away in around 2001, he then started to rely on sleeping A
pills. D2 received education up to Secondary 4, and has
no previous criminal conviction record.
B B
It was submitted that when D2 left Nigeria, his wife was
pregnant, and she is now struggling to support their
C C
son. He has been communicating with his wife during the
remand but due to depressed feelings, he stopped
D communicating for the last 3 months. D
Counsel for D2 Ms Alva asked this court to give D2 a
E 20 percent or more guilty plea discount. In this E
regards, it may be useful to set out the salient
chronology. True it is that D2 indicated his guilty
F F
plea of Count 2 in July 2022, during the committal
stage. However, as pointed out by Ms Alva, D2 changed
G his plea to not guilty regarding Counts 2 and 3 very G
soon after, hence the case was committed to this court
for trial. Ms Alva said much resources had been wasted
H by D2’s change of plea. H
I
As per directions made by this Court, grounds of I
objection against D2’s interviews were filed, and
parties were supposed to commence trial by having a voir
J dire before the empanelment of a jury. It was only when J
the arraignment was conducted that D2, not known to
Ms Alva, replied that he was guilty to Count 2. As
K such, the case was adjourned for counsel to take K
instructions and for the prosecution to amend the
L indictment and Summary of Facts so as to cater for the L
sudden change of plea.
M Sentencing Principles M
For many years, the community of Hong Kong has taken a
N severe view of drug trafficking - particularly in N
relation to drugs such as cocaine, heroin,
O methamphetamine and esters of morphine. No doubt the O
drug has terrible consequences for the individual, there
are also serious consequences for the community.
P P
The view of the community is reflected by the courts in
the nature of the sentences and levels of those
Q Q
sentences traditionally imposed for drug trafficking.
The sentencing policy underlying is to impose deterrent
R sentences. The courts have provided sentencing R
guidelines for trafficking in dangerous drugs.
S The guidelines for trafficking in heroin originated in S
R v Lau Tak Ming, which were confirmed in HKSAR v
Abdallah Anwar Abbas by the Court of Appeal. The
T T
relevant guidelines are also applicable to offences of
trafficking in cocaine and ester of morphine (see HKSAR
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A v kanfune Bashiri Rajabu and HKSAR v Matthrew Rogers A
Raphael).
B As regards the sentencing guidelines for B
methamphetamine, the sentencing guidelines are contained
in the Attorney General v Ching Kwok Hung, as amended in
C C
HKSAR v Capitania Edwin F and as revised in HKSAR v Tam
Yi Chun.
D D
In the present case, the total amount of methamphetamine
in Count 1 exceeds 600 grammes, the same tariffs as for
E heroin in HKSAR v Abdallah Anwar Abbas apply. E
Therefore, the applicable guidelines for sentencing for
F F
both Count 1 and Count 2 shall be that of Lau Tak Ming
and Abdallah Anwar Abbas.
G G
Sentences
H In respect of D1, Counts 1 and 2 be considered together. H
As submitted by Mr Davies for D1, for reason that the
I
offences were all committed on the same day and in close I
proximity, and the applicable tariffs are the same, I
will take into account the approach as stated in HKSAR v
J Wan Lau Mei, that what makes more sense and is the best J
approach is to add up all of the drugs in these 2
charges, and impose the same sentence for each charge to
K be served wholly concurrent to each other. K
L In this case, it makes more sense to approach sentences L
of both Count 1 and Count 2 by adding up all the drugs
in these 2 charges for reasons stated above and also
M that I will have to approach the overall sentence M
pursuant to the six-step propounded in the case of Herry
Jane Yusuph. However, since D1 was convicted after
N trial and there is a chance that the case be brought N
further, I am not minded to impose the same sentence for
O both Count 1 and Count 2 as stated in the case of Wan O
Lau Mei. I will however, adopt the relevant approach to
check the appropriateness of the overall starting point.
P P
Arithmetically, 211.36 grammes of cocaine would attract
12 year and 2 months’ imprisonment. Having converted
Q Q
this into the corresponding quantity of ‘Ice’, that
methamphetamine, you would give 169 grammes of ‘Ice’.
R So having done the conversion and used ‘Ice’ as the R
basis for the sentence of Count 1, you would give 1,433
grammes of ‘Ice’ (1,264 and 169 grammes). Concerning
S Count 2, the total narcotics is 325.45 grammes and given S
the trivial quantity of the ester of morphine, I will
treat the whole lot as heroin. This will then be
T T
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A converted in 246 grammes of ‘Ice’, that alone attracts a A
starting point of 13 years and 10 months’ imprisonment.
B In respect of D1, I then combine the narcotics under B
both counts, which gives rise to 1,679 grammes of ‘Ice’
(1,433 plus 246 grammes), which would achieve an initial
C C
starting point of 23 years and 6 months’ imprisonment
according to the common applicable guidelines.
D D
In respect of D2, the total quantity of dangerous drugs
involved in Count 2 is 325.45 grammes, which achieves an
E initial starting point of 13 years and 10 months’ E
imprisonment.
F F
As to the respective role played by D1 and D2, in light
of the evidence adduced, in particular the circumstances
G D1 and D2 were found, the CCTV footages of the evening G
of 1 April 2020, I find that the respective role played
by D1 and D2 was that of a mere courier or storekeeper,
H namely they belonged to the least culpable band under H
the case of HKSAR v Herry Jane Yusuph.
I I
In determining the proper starting point for D1 and D2,
I have to consider whether there are any aggravating
J factors which might require me to enhance this starting J
point. As already noted, the trafficking in this case
involves more than one type of dangerous drugs, and that
K both D1 and D2 are Form 8 holders (see HKSAR v Ali K
Saif).
L L
Concerning D1, I will enhance the initial starting point
of 23 years and 6 months for both Counts 1 and 2 by
M three months as more than one type of dangerous drug M
were involved, and another 1 year due to D1’s Form 8
status. This leads to an overall starting point of
N 24 years and 9 months. N
O In arriving at this overall starting point, I have also O
considered the individual sentences concerning Count 1
and Count 2. The initial starting point in respect of
P Count 1 alone shall be that of 23 years and 3 months’ P
imprisonment. 3 months of enhanced sentence be given
because more than one type of drug were involved and 1
Q Q
year of enhanced sentence for his Form 8 status. This
leads to an overall starting point of 24 years and
R 6 months’ imprisonment in respect of Count 1. R
As to Count 2 against D1, the same starting point of
S 13 years and 10 months’ imprisonment is applicable, I am S
minded not to enhance the sentence given the relatively
minor quantity of the other types of drugs involved, but
T T
I will enhance by 1 year due to his Form 8 status. So
the individual sentence for Count 2 is 14 years and
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CRT24/7.2.2024/TB 7 HCCC 108/2022(3)/Sentence
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A Given the approach I adopted in considering the overall A
sentence of both Counts 1 and 2, 3 months of the term of
Count 2 shall run consecutively to the term of Count 1,
B leading to a 24 years and 9 months’ imprisonment. B
D1 also faces Count 3. In view of the prosecution case,
C C
that when the police officers had broken the doorknob of
Room 7, their attempt to gain entry was resisted by
D people inside Room 7, namely, D1 and D2. It lasted for D
a few seconds. The prosecution fairly based their case
only upon the resistance part instead of the glass
E breaking and the struggling put up by D1, hence, I will E
not take into account the struggling part as well as the
glass breaking part in sentencing D1 under Count 3. In
F F
any event, I accept submissions made by Mr Davies that
no one was injured and D1 was quickly calmed down.
G G
In that case, I will adopt a starting point of 1 month’s
imprisonment concerning Count 3 against D1. In light of
H the whole of the circumstances, I will not enhance the H
sentence for D1’s Form 8 status.
I I
It was submitted that the offence under Count 3 was
essentially part of the drug trafficking offences and
J should therefore run mostly if not wholly concurrent to J
sentences of Counts 1 and 2. Despite the great effort
of Mr Davies, with respect, I do not agree. In the
K course of conducting the raid due to the information K
received by the police, D1 did attempt to resist the
L police and that there was indication of an attempt to L
escape or to dispose of the drugs during the time the
police encountered resistance. In the premises, I shall
M order the 1 month’s imprisonment of Count 3 be M
consecutive to that of the combined sentence of Count 1
and Count 2, therefore it leads to a term of
N imprisonment of 24 years and 10 months’ imprisonment. N
O Concerning D2, as stated above in relation to D1, given O
the relatively small quantity of the other types of
drugs, I will not enhance the sentence. However, an
P enhancement of 1 year shall be imposed due to D2’s Form P
8 status. Hence the starting point of Count 2 against
D2 shall be one of 14 years and 10 months’ imprisonment.
Q Q
Lastly, I have to stand back and observe the overall
R sentence to ensure it is fair, balanced and just in all R
circumstances of the offence and the offender; to ensure
that it is not a crushing sentence.
S S
In approaching the sentence of D1 in the final step as
propounded in Herry Jane Yusuph, D1 was found guilty
T T
after trial, I have considered the overall sentence,
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A the quantity of drugs, the sentence of Count 3 and the A
facts of the case. Standing back, no doubt D1 is going
to serve a very significant term of imprisonment, but a
B severe or harsh sentence is not by reason alone B
necessarily unfair, imbalanced or unjust. I fail to see
any mitigating factor that allows me to reduce the
C C
sentence to be served by D1.
D Therefore, D1 shall serve an overall sentence of 24 D
years and 10 months’ imprisonment.
E Concerning D2, the starting point I adopted in respect E
of Count 2 is that of 14 years and 10 months’
imprisonment. D2 filed notice of objection against the
F F
admissibility of the caution interviews, but only
pleaded guilty during the arraignment stage, and that on
G day 2 of the hearing, Ms Alva informed this court of the G
difficulty she encountered in communicating with D2, and
that D2 was initially not ready to admit the facts which
H were prepared over the night by the prosecution, due to H
his sudden change of plea.
I I
It was fairly accepted by Ms Alva that D2 is not
entitled to the full one-third discount. As held in Ngo
J Van Nam, the discount afforded to the defendant in a J
similar situation as this, would at most be 20 percent,
save for exceptional circumstances. In these
K circumstances, I will still exercise my discretion in K
giving a 20 percent discount to D2. D2 is therefore
L sentenced to 11 years and 10 months’ imprisonment. L
1st defendant, I shall sentence you to 24 years and
M 10 months’ imprisonment. M
2nd defendant, I shall sentence you to 11 years and
N 10 months’ imprisonment. N
O Court adjourns – 3.59 pm O
7 February 2024
P P
Q Q
R R
S S
T T
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V V