HKSAR v. SHAH SYED ARIF

HCCC 394/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 394 OF 2014

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REASONS FOR SENTENCE
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1. On 20 August 2015, the defendant was convicted by unanimous verdict of the jury of trafficking in 142.98 grammes of a solid containing 55.88 grammes of cocaine.

2. The prosecution case which the jury has accepted by its verdict was that the defendant was observed in the evening of 6 April 2014 behaving suspiciously.  He was carrying an umbrella throughout the time he was under observation by the police.  He entered Mirador Mansion at about 7:00 pm that day carrying the umbrella.  CCTV footage showed him entering and leaving the building carrying the umbrella.  As he came out of the building at about 7:35 pm, a police officer noticed that there was bulge in the umbrella which was folded and suspected he was concealing something.  As he got into a taxi, the police officer arrested him and upon a search of the umbrella he found concealed inside 8 packets of cocaine wrapped tightly in plastic in the shape of small eggs. 

3. The prosecution case was that he was in possession of the drugs for the purpose of trafficking as a courier or retailer of the drugs.  

4. The sentencing tariff for trafficking in cocaine is contained in R v Lau Tak Ming [1990] 2 HKLR 370 where it sets a band of 8 to 12 years’ imprisonment for a narcotic content of 50 to 200 grammes.  Accordingly, a starting point of 8 years and 2 months’ imprisonment would usually be adopted for a narcotic content of 55.88 grammes.  The tariff is subject to the circumstances of the offence and the offender and may be adjusted upwards if there are any aggravating factors or downwards if there are any mitigating factors. 

5. There is a feature in this case that needs to be addressed as to whether it constitutes an aggravation of the offence. 

6. In January 2007, the defendant came to Hong Kong illegally from Mainland China.  I am informed that upon his arrival he made a torture claim with the UNHCR.  Later in November 2007, he was stopped by the police who referred him to the Immigration Department which on 22 N0vember 2007 issued to him a Form 8 Recognizance by reason of his torture claim.  In consequence, the defendant was given special consideration and treatment by way of freedom of the city and welfare support while his claim was processed.  It was during this period and under this arrangement that he perpetrated the crime of trafficking in drugs in Hong Kong for which he has now been convicted.

7. It puts into question whether his claim was genuine to start with and whether his real purpose in coming to Hong Kong and making an application as a torture claimant was to remain here to carry out his nefarious trade.  For the avoidance of any doubt, I make no finding on this point, and nor is it a consideration in the sentence I will impose, but it is nevertheless the case that the defendant’s conviction for this offence, given his circumstances, was a serious abuse of Hong Kong’s commitment to its international human rights obligations and a serious slight on its reputation for order and security. 

8. It has been held by the Court of Appeal in HKSAR v Sandagdorj Altankhuyah and Anor [2014] 1 HKC 206, that a person who comes to Hong Kong seeking asylum and commits a serious crime while that claim is being processed may constitute a serious aggravating factor depending on the circumstances of the case.  There the appellant who was a torture claimant had been convicted together with another for pick pocketing at a favourite tourist destination and sentenced to 30 months’ imprisonment.  He appealed his sentence on the basis that it was manifestly excessive which was dismissed.  Macrae J (as he then was) in the judgment of the court had this to say as to his status as a torture claimant on his sentence.

“20. … He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination , and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

21. Where someone in the position of the 2^nd 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 when 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.

22. We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation…”

9. It is true that not every offence committed by a torture claimant would aggravate the crime but when the crime is as serious as trafficking in a dangerous drug this will undoubtedly affect the community at large and have an impact on Hong Kong’s reputation for order and security and thereby constitute an aggravating factor when such a crime is committed by a torture claimant.  Of course each case will turn on its own particular facts and circumstances and the court has discretion as to whether or not a sentence should be enhanced in such a situation.

10. I bear in mind that the defendant has been here since November 2007, without having committed any serious transgression during that period and that in May 2012 he got married to a local Chinese woman and sought residency here on a dependency visa.

11. The crime committed by the defendant was not something that he did on the spur of the moment and not without a degree of forethought and planning.  The defendant by his conduct was clearly knowledgeable and familiar with the drug trade which was apparent from the facts and circumstances of the case and the techniques of concealment he used to transport and/or convey the drugs in his possession.  The quantity of solid cocaine was in eight small egg shaped packets which had been tightly wrapped in plastic and therefore in a form so as to conceal what was contained in them and to surreptitiously trade in them with another.

12. I consider that the circumstances of this case fall squarely into the category of case that Macrae J described as capable of aggravating the sentence for the crime.  I am of the view that the defendant having committed this serious crime whilst a torture claimant has blatantly abused Hong Kong’s goodwill and good intentions and that this constitutes a serious aggravating factor as described by Macrae J, warranting an enhancement of his sentence.

13. The simple fact is that people who come to Hong Kong and seek protection under its international commitments should be on notice that if they are convicted of serious crime, depending on the circumstances of the case, their status may be a factor capable of aggravating the offence which would be reflected by enhancing appropriately the starting point of the sentence.  

14. Mr Trevor Beel, on behalf of the defendant, submits in mitigation that he is married to a local Chinese woman but as a result of this case his application for residency as a dependent has been refused.  It emerged during the course of the trial that the defendant had two bankcards in his possession at the time of his arrest – one in the name of his wife and the other in the name of his girlfriend who is also a local Chinese woman.  It is not clear what his relationship is with his wife as Mr Beel has informed me that those instructing him have not been able to contact her.  He is also unable to provide any information about the nature or progress of the defendant’s torture claim except that some time ago the defendant was contacted by Immigration Department officers in relation to it while he was in custody but he refused to see them.  Mr Beel submits that the conviction will have a devastating effect on his life but this is something he should have considered when he embarked upon his involvement in the drug trade, and to express regret now comes only after he has been convicted of this very serious crime.

15. In addition to the tariff sentence that is fixed for the narcotic content of the drug involved, I will enhance the sentence for the aggravating factor as described by Macrae J by 1 year and 10 months and accordingly fix a starting point of 10 years’ imprisonment.  There being no mitigation warranting a reduction to the defendant’s sentence, he is sentenced to 10 years’ imprisonment.