HKSAR v. MOHAMMED SHABIR

HCCC 388/2018

[2019] HKCFI 2361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 388 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

MohammedShabir, you have pleaded guilty today to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

You were originally committed to this court for trial on two counts of trafficking in dangerous drugs but at the case management hearing on 13 June of this year, you indicated your intention to plead guilty and to provide assistance. The matter was ultimately adjourned until today for you to provide that assistance and to enter your plea and be sentenced.

On Count 1, you have pleaded guilty to trafficking in 142 grammes of cocaine. On Count 2, you have pleaded not guilty to trafficking in 24.38 grammes of cocaine, 1.73 grammes of methamphetamine hydrochloride and 2.76 grammes of cannabis resin. The prosecution have accepted that plea and asked the matter be left on the file, not to be proceeded with without leave of this court to the Court of Appeal and I so order.

You have agreed the Summary of Facts which founds the basis of your plea, that is, that on 27 March 2018 on Lot 989 in DD 119, Pak Sha Tsuen, Kung Um Road, Yuen Long, you were found to have the 142 grammes of cocaine in a red plastic bag in your jacket pocket. On a coffee table inside the hut in which you lived, the officers found a further quantity of cocaine underneath the sofa and some ‘Ice’ and cannabis resin on top of the table. Items for consuming ‘Ice’ were also recovered as well as an electronic scale and $13,600 was found in a car to which you had the keys. You say the car was that of your friend who was currently in prison at the time. And you say now today through Mr Grounds that the money was given to you by your brother to pay to your mother. I do not accept that.

The dangerous drugs found within the hut are now only relevant to show the nature of your own admitted drug abuse and the connection to Mr Ngai who was living with you at the time and whom, you say, asked you to deliver the cocaine which was found upon you. The money suggests otherwise. You said nothing upon arrest and caution, and when questioned about it in interview, as is your right, you did not assist the police further. It took some time but you were ultimately persuaded that being slightly more full and frank with the police would be to your benefit.

The retail value of the drugs that you were trafficking in under Count 1 was HK$229,254. I do take into account, Mr Shabir, all that has been said on your behalf by Mr Grounds. You are a Hong Kong ID holder. You are married with two children, although I note that you must have been living separately at the time of your arrest as the hut in question was occupied by yourself and Mr Ngai. You are 39 years of age and you were employed, you say, on a casual basis, earning approximately $10,000 a month.

Unfortunately, you have a criminal record which dates back to 2005, at which time you received a term of imprisonment of 2 years for two counts of trafficking in dangerous drugs. And in 2017, for two counts of possession of dangerous drugs, you received 20 months’ imprisonment. Mr Grounds has provided me with the background to all of that offending as he previously represented you on both sets of matters. You were discharged from prison on 26 May 2017. The current offending took place less than a year later and as I now know whilst you were on bail.

Trafficking in cocaine falls to be considered under the guidelines in HKSAR v Lau Tak Ming [1990] 1 HKLR 370. For trafficking in between 50 to 200 grammes, the sentencing range after trial would be 8 to 12 years. So 142 grammes of cocaine would attract a starting point of 10 years and 6 months’ imprisonment.

Mr Shabir, the trafficking of dangerous drugs is a very serious offence. Deterrence is therefore an overwhelming consideration. Your plea was indicated at a late stage, and under HKSAR v Ngo Van Nam you should receive a discount only of 25 per cent for that plea, given that it was not entered at the earliest opportunity. I have, however, heard some of your personal background and your attempt to assist the police. This has come to nothing and Mr Turnbull tells me it was of no value. That could be because Mr Ngai has gone missing and also because you were still not accepting your role in this offending at that stage but you have done so now.

The Court of Appeal has indicated that you should receive an enhanced discount for your attempt to assist even if that is not pursued. I presume that to mean so long as there is some substance to the assistance and it was done in good faith. Mr Grounds urges me to mark that assistance. Given the circumstances of this case, both counsel accept that I may do so by reason of a nominal deduction in sentence. But I must add now also that because you were on bail at the time of this offending and clearly were well aware you were on bail at this time of offending that I will need to add 3 months to your sentence in order to mark that fact. But, of course, you will be given a full discount on sentence for that.

So the sentence which I pass is one of 10 years 6 months on Count 1 which will be reduced to 7 years and 4 months to mark the 25 per cent reduction for your plea and your attempt at assistance, and I will then add the 2 months which shows a one-third discount for your offending whilst on bail. The total sentence therefore will be 7 years and 6 months.