HKSAR v. KHAN ASIF ALI

HCCC 369/2019

[2020] HKCFI 2714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 369 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Mr Khan Ali Asif, faces one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant, on the 4 November 2016 at Lo Wu Control Point, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine.

He pleads not guilty to the charge but is convicted after trial by a jury.

Evidence in the Trial

At about 1644 hours on 4 November 2016, when the defendant arrived at the Lo Wu Control Point from Shenzhen, China, he was stopped by a customs officer. A packet inside the right pocket of his jacket was found to contain cocaine. He was arrested and cautioned to which he said he understood.

In the left pocket of his jacket and the right and left front and rear pockets of his jeans, another 6 packets of cocaine were found. He was further cautioned and when he was asked what they were, he said he did not know. He also explained that he had obtained them from an unknown Indian in Shenzhen and he was to take them to Fanling Railway Station.

The total amount of dangerous drug was 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine.

A controlled delivery operation was mounted with no result. When he was in the custody of the Customs and Excise, he had WhatsApp communication with another person in which he said all the second-grade goods had been found and asked the person to catch the one who had given the things. He also sent a Pakistan telephone number to the person and asked the person to help them.

The defendant gives evidence that he was a security guard and he also carried goods for other people across the Hong Kong and China border. On 4 November 2016, at the request of Naeem, who was his good friend and for whom he had carried goods across the border, he obtained the 7 packets of cocaine in Shenzhen and took them to Hong Kong. He did not know what was contained in the packets. He was supposed to take the packets to Fanling Railway Station and to call Naeem there. He bought a bottle of whiskey for Naeem at the Hong Kong Duty Free shop and he put the 7 packets in his pockets. He was intercepted by the Hong Kong Customs and Excise and was arrested and cautioned when the packets were found to contain cocaine.

He told the Customs and Excise officer he did not know what the packets contained and also explained to the officer how he had obtained the packets in Shenzhen to take to Hong Kong.

While in detention at the Customs and Excise Lo Wu Office, he used his mobile phone to have WhatsApp audio exchanges with Naeem. The defendant says that the exchanges show that he is innocent. He later took part in a controlled delivery operation which did not produce any result.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is 40 years old and holds a degree of Bachelor of Arts. He was a security guard earning $13,400 a month. Counsel for the defendant, Mr Whitehouse, says that the defendant was exploited by Naeem and after being arrested he took part in the controlled delivery operation, trying to offer assistance to the authorities.

At his request, 2 officers of the Narcotics Bureau of the Hong Kong Police interviewed him while he was remanded in jail custody. Mr Whitehouse says that there can be as much as 10 per cent discount in sentence for assistance given to the authorities.

He cites the authority of R v Millberry [2003] 2 All ER 939 to support his submission that sentencing guidelines are not a strait-jacket.

As regards the enhancement of sentence for the reason that the defendant brought the dangerous drug from Shenzhen to Hong Kong, Mr Whitehouse says that it should not be an automatic enhancement of 2 years and that after enhancement, the sentence should not become oppressive and overloaded. He cites the cases of HKSAR v Islam Azharul, CACC 98/2019 and HKSAR v Ali Qasim, CACC 332/2018 as authorities.

Mr Whitehouse also submits to court a letter of Father Wotherspoon saying that the defendant had helped in his anti-drug campaign. Mr Whitehouse urges the court to be lenient to the defendant.

Sentence

The Court of Appeal laid down sentencing guidelines for trafficking in cocaine in the cases of AG v Rojas [1994] 1 HKC 342 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. For a quantity of 1,200 to 4,000 grammes of cocaine, the starting point is 23 to 26 years imprisonment. The amount of cocaine involved in this case is 1,672.6 grammes and the starting point, in accordance with the guidelines, is approximately 23 years 6 months imprisonment.

The court agrees that sentencing guidelines are not a strait-jacket. As Lord Woolf CJ said in R v Millberry, “guidelines judgments are intended to assist the judge arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge.”

The court in deciding on the correct sentence must bear in mind that the court has a duty to pass a sentence which sufficiently reflect the criminality of an offender and to pass consistent sentences on offenders of similar mitigating circumstances and criminality so as to avoid creating grievances in an offender or giving the public an impression that justice is not done. Having consider the circumstances of the case, the court is of the view that there is no reason to depart from the sentencing guidelines, thus adopting 23 years 6 months imprisonment as the basic starting point.

The court agrees that the sentence should not be enhanced for the reason of international element to the extent that it becomes oppressive and overloaded. The enhancement should however be proportional to the criminality of the offence. After considering the authorities cited by Mr Whitehouse as well as HKSAR v Chung Ping Kun, CACC 85/2014, HKSAR v Chan Ka Yiu, CACC 147/2016 and HKSAR v Leung Lok Yi, CACC 346/2016, the court enhances the starting point to 25 years 6 months imprisonment.

The defendant agreed to take part in the controlled delivery operation and was interviewed by officers of the Narcotics Bureau. Although no results were produced, the court is prepared to give him some discount in this regard. The court reduces the starting point to 24 years 3 months imprisonment.

After giving 3 months discount for his assistance in the anti-drug campaign of Father Wotherspoon, the court sentences the defendant to 24 years imprisonment.