HKSAR v. MOHAMMAD IAMRAN

HCCC 129/2019

[2019] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 129 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 8 May 2018, shortly after midnight, as a result of an anti-narcotics operation at Chungking Mansions in Tsim Sha Tsui, Mohammad Iamran (hereafter “the accused”) was arrested and charged with trafficking in a dangerous drug. He was brought before a magistrate. In the result, on 15 April 2019, he pleaded guilty to a charge of alleging trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance. The particulars of the charge allege that he trafficked in 298 grammes of a solid containing 240 grammes of cocaine. He was committed for sentence to this court.

At the hearing before the magistrate at which he was committed for sentence, a Summary of Facts was admitted.

Shortly after midnight on 8 May 2018, the accused was seen leaving the main entrance of the Paradise Garden Guesthouse in Chungking Mansions in Tsim Sha Tsui. His conduct aroused suspicions on the part of police officers who were nearby, and he was asked by officers where he lived. He answered to the effect that he lived in a room in a particular guesthouse.

The accused was searched, and a key card of the main entrance of the guesthouse and a particular room in the guesthouse was found in his pocket. A search was conducted of the particular room under the auspices of a search warrant. In that particular room, a paper box and an electric scale were found on a bedside table and in addition to chemical substances found there together with a quantity of cocaine which is that found in the charge.

At the time of the arrest, the accused was found to be in possession of just under $1,000 in cash. His initial position was that the drugs did not belong to him. In his video interview, he provided an explanation as to why he was found in the premises. As to how he gained entry to the guesthouse and to the specific room for which he had a key, he declined to provide any information to the police.

By the facts admitted by the accused at the committal proceedings and his plea, the accused accepts that he was in knowing possession of the mixture containing the cocaine and he possessed it for the purpose of unlawful trafficking. Indeed, counsel for the accused told me that he was carrying the drug for an African syndicate and his reward, if one can call it that, was a small amount of cocaine to feed his own habit.

It is also admitted that in May 2018, the street value of the cocaine in powder form was about 323,000 and it was in crack form. It was worth 379,000.

Background and Antecedents

The accused was born in India in April 1990. That makes him 29 years of age. He is not educated and he is unemployed and single. He came to Hong Kong in 2003.

In 2005, the accused was convicted of a series of offences of possession of a dangerous drug.

Sentencing Principles: Trafficking in Dangerous Drugs

For many years, the community of Hong Kong has taken a severe view of trafficking particularly in relation to drugs such as cocaine. It is easy to see why. The drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the least, an arduous process and, sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. There are consequences - sometimes serious ones - for families of those who become addicted to cocaine.

The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment and that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of trafficking in dangerous drugs, including the drugs, the subject of the charge in this case.

The source of guidelines in relation to trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. The correctness of guidelines in relation to cocaine was confirmed by the Court of Appeal in HKSAR v Abdallah in [2009] 2 HKLRD 437.

The applicable sentencing guidelines provide for a sentence after trial in relation to quantities between 200 grammes and 400 grammes of a sentence between 12 and 15 years.

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

In this case, the accused asserts that he has assisted the authorities and should be sentenced in accordance with the policy of the courts which regards assistance as capable of affording an element of mitigation of the crime committed by the accused. It has always been the policy of the courts that an offender committed of crime, will receive credit against his sentence for assistance which has been rendered to enforcement authorities, and I cite Z v HKSAR [2007] 10 HKCFAR 183, 1 HKLRD 977, 2 HKC 265; R v AXN [2016] EWCA Crim 590, [2016] 1 WLR 4006, [2016] 2 Cr App (S) 33. The policy of the courts of Hong Kong in this regard was articulated in Z v HKSAR where Li CJ held:

“It is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and usually to give an appropriate reduction from sentence which the defendant would otherwise have received. The assistance is most often given by the defendant after his arrest for the offence for which he is being sentenced (‘post‑arrest assistance’). There may be occasions where the assistance given by the defendant before his arrest (‘pre-arrest assistance’).”

Li CJ held that the rationale for this policy is:

“The policy of the courts is to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that the appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention and detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should also be encouraged to inform on other criminals. Honour amongst thieves should be discouraged. Indeed, dishonour and betrayal amongst thieves should be encouraged.

The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is the common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activity of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one.”

Li CJ held that to obtain a recognition by way of a reduction of sentence, the assistance should be “useful assistance”. In this regard, Li CJ suggested that the courts could take, look to a number of factors, including:

“The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent to which the defendant’s assistance, in particular, whether he was prepared to give evidence.”

It is plain from the foregoing that any discount must be conditioned on what is characterised by Li CJ as useful assistance. Clearly, not all offers of assistance could be characterised as useful assistance. In some case, a small discount might be granted where the accused has participated in, for example, a controlled delivery which is ultimately unsuccessful. In such a situation, it may readily be seen that the person assisting the police has done all that he or she could. In those cases, where there is no useful assistance in the final analysis, such effort to arguably promote dishonour and betrayal amongst thieves which was articulated as an objective of the policy in Z v HKSAR (above). The courts have also directly considered the position of an accused who participates in what is commonly known as a controlled delivery and is unsuccessful. This may be seen in the decisions of the Court of Appeal in HKSAR v Nkwo Nuaemeka Darlington [2016] 1 HKLRD 692 and HKSAR v Lo Sze Tung CACC 190/2017, [2018] HKCA 421. The court in HKSAR v Lo Sze Tung observed in connection with the sentencing range of 33 per cent to 40 per cent that:

“This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance which has been helpful but, for one reason or another, not particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.”

The Court of Appeal was there recognising there could be some discount for assistance offered to the authorities which was ultimately assistance which did not bear fruit. McWalters JA held the position at paragraph 51:

“Although we would not wish to inhibit judges in their assessment of this form of assistance, it must be always borne in mind that it is both limited and unfruitful in nature. Precisely because it possesses these features, there would need to be something quite exceptional to justify awarding a defendant a discount as much as 40 per cent. As was made clear in Darlington, 40 per cent is certainly not the norm for this form of assistance; rather, we would say that it should be seen very much as the high-water mark.”

While the Court of Appeal was concerned with the unsuccessful or uncontrolled deliveries as a form of assistance, the principle which underlines the approach of the Court of Appeal has a wider application. Not only must the accused have “done his best”, so it seems to me, but there must be something about the offer of assistance which has potential utility but for some reason does not produce fruit.

Form 8 Holders

The accused in this case is a Form 8 holder. That is a relevant factor in considering sentence. In HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206, the Court of Appeal considered that there were circumstances in which a person in the position of the accused might face an aggravation of sentence by reason of the situation. In that case, the Court of Appeal was considering a Form 8 holder who had together with another person set out on a spree in a well-known entertainment area of Hong Kong. Macrae JA for the court observed in relation to this person (who was the 2nd appellant before the Court of Appeal):

“Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and while that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

Not every crime would attract an element of aggravation but in this case, the accused was a link in the supply and distribution of cocaine. His reward for participating in the supply chain was on any view verging on the utterly pitiful and he was, I suspect as many Form 8 holders are, basically exploited in a cold-blooded way but he was a party to a crime which in Hong Kong which is viewed with the utmost seriousness; borrowing the words of Macrae JA, aimed at the community who have accorded him protection. The degree of aggravation must be clearly proportionate to the actual criminal activity involved. Trafficking in a small quantity of dangerous drugs would attract a lower degree of enhancement of the sentence whilst trafficking in a substantial quantity of drugs might attract a greater enhancement.

Application of Sentencing Principles to the Facts of the Case: Starting Point

In my judgment, an appropriate starting point for this quantity of cocaine, had the accused been convicted after trial, would be 12 years and 6 months.

In my judgment, an enhancement from the starting point for sentence on account of the accused being a Form 8 holder is obviously justified in this case. I consider that an enhancement of 6 months is appropriate. It would have been a substantially greater enhancement were there evidence that the accused actually trafficked for a substantial reward.

That leads to a starting point of 13 years.

Plainly, the accused indicated a plea of guilty at the earliest practicable moment and is thus entitled to a discount of 33 per cent from such a sentence. The remaining question is whether any further discount should be accorded for assistance to the authorities.

The evidence is that while three non-prejudicial statements have been given to the police, nothing has come from these. Information provided by the accused comes under broad headings. One is about specific locations where drugs are trafficked. The second heading concerns a person who the accused said was a confederate of his in the trafficking of the drugs, the subject of the present charge. The prosecution makes the point that what was told to the police is inconsistent with the version offered by the accused when the matter was initially investigated. Information arrived at a time after the accused was intercepted. It probably would have been unduly harsh to call the information about localities generic but it appears to have impressed no one. In short, the information given by the accused is without value and has in effect come to nothing. In my judgment, this is a case where no additional discount should be accorded to the accused.

Disposition

In the result, applying the appropriate sentence in this court on the starting point of 13 years discounted by 33 per cent, the order of this court is the accused be sentenced to a term of imprisonment of 8 years and 8 months. That is the order of the court.