HKSAR v. SK WASIM

CACC 77/2019

[2019] HKCA 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 77 OF 2019

(ON APPEAL FROM DCCC NO 860 OF 2018)

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J U D G M E N T

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Introduction

1.  On 6 March 2019, the applicant was convicted on his own plea in the District Court by Judge Sham (the judge) to a single charge of trafficking in a dangerous drug, namely 11.7 kilogrammes of cannabis resin.

2.  In sentencing the applicant, the judge adopted a starting point of 4 years and 6 months’ imprisonment for the quantity of drugs involved which he enhanced by 6 months for the fact that the applicant was a Form 8 recognizance holder at the time of the offence and 3 months for the international element.  The nominal sentence of 5 years and 3 months’ imprisonment was reduced by one third for the applicant’s guilty plea to 3 years and 6 months’ imprisonment.

The issue on appeal

3.  On 15 March 2019, the applicant filed a notice of application for leave to appeal against sentence.  The general grounds of appeal that he listed in his notice have now been substituted with a single ground by which it is complained the judge erred in enhancing his sentence by 3 months for the international element.  This issue will primarily depend on the facts outlined to the judge and admitted on behalf of the applicant.[1] 

The agreed facts

4.  On 7 May 2018, police officers were carrying out an anti-drug operation at Chungking Mansions.  One of the police officers observed on the security camera system a delivery worker take some cartons to Flat B2 on the 7^th Floor, Block B.  When the police officer went to the flat the delivery worker was still bringing cartons to the flat which the applicant would take inside while another Indian male, known as “Taz”, stood at the entrance keeping an eye on the cartons in the corridor.  When the applicant was intercepted by the police officer he said that someone had paid him $200 to deliver the boxes.  The police officer observed that inside the flat there were 5 cartons while 10 cartons were still outside in the corridor.  When police officers opened and checked the contents of the 15 cartons they found 418 packets of purported Indian snacks in which were concealed 48 plastic bags containing a total of 11.7 kilogrammes of cannabis resin. 

5.  The estimated street value of the drugs at the time of the offence was $1,380,600.

6.  It was an admitted fact that the cartons of goods had been sent from India on 3 May 2018 to “Nadir Ahmed” at Flat B8, 12^th Floor, Block B, Chungking Mansions, with a contact telephone number “5534 9336”.  However, the delivery worker had been instructed to take the cartons to Flat B2 on the 7^th Floor, Block B.  This was a subdivided flat which consisted of a number of rooms.  Room 6 of the flat had been rented that day and the keys were left inside the room for the prospective occupant.  The CCTV footage of the floor captured the arrival of the applicant and Taz at 10:19 am and the delivery workers soon thereafter.  The door of the flat was opened by another Indian male, known as “Haydar”.  The applicant and Taz entered the flat and the delivery workers commenced moving the cartons into the flat.  Haydar left at 10:26 am.

7.  In a subsequent video-recorded interview, the applicant stated that he went to Taz’s residence on the 12^th Floor, Block B to play games.  Haydar was present and he asked the two men to collect some cartons on the 7^th Floor, Block B.  Haydar sent the password to the room to the applicant through WhatsApp.  They could not get into the room so they called Haydar who came to open the door.  The goods then arrived and Haydar acknowledged receipt of them.  The applicant said he moved the cartons inside while Taz and Haydar were outside.  He knew the telephone number “5534 9336”, which he said belonged to a person known as “Azer” who lived together with Taz and Haydar in the flat on the 12^th Floor, Block B.

The international element

8.  The judge concluded that there was an international element in this case, and it would appear he did so, mainly because the cartons which contained the drugs had been imported from India and the applicant soon after dealt with them.  He said in his reasons for sentence:

“9. If there is an international element involved in drug trafficking, it is a ground for enhancing the sentence. In the instant case, the drugs were sent from India and arrived at its destination (Chungking Mansion); no sooner had the drugs arrived then the defendant was there to deal with it - such scenario clearly involves an international element, and I would on this ground increase the sentence by 3 months.”

9.  The applicant raises the issue as to whether in the circumstances of his case, there is an international element simply because the drugs in question originated from India.  From the admitted facts, it is arguable that the applicant’s criminal conduct was limited to moving the cartons containing the drugs into Room 6 and did not involve him either bringing the drugs into Hong Kong from India or being involved in an international drug trafficking syndicate for this purpose.

10.  It raises for consideration what is precisely meant by an “international element”, and how and when should it warrant an enhancement to a sentence for trafficking in drugs.  The sentencing authority for an enhancement to a sentence for an international element in a drug trafficking case is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, at paragraphs 42 and 43.  There the Court listed various aggravating factors that would call for an enhancement to the starting point which included where “an international element is involved”.  See R v Lau Tak Ming [1990] 2 HKLR 370, at 387D; HKSAR v Chung Ping-kun (unreported, CACC 85/2014, 2 July 2014), at paragraphs 9 and 10; HKSAR v Cherif Mohamed [2015] 4 HKLRD 604; and HKSAR v Zaripov Eduard (unreported, CACC 165/2018, 21 March 2019), at paragraphs 41 to 43.

Conclusion

11.  In light of the foregoing, I am of the view that this is a reasonably arguable ground of appeal against sentence and leave is accordingly granted.