HKSAR v. SHAHID

HCCC 441/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 441 OF 2014

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

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COURT: The defendant, Mr Shahid, pleads guilty to 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 the offence are that the defendant on the 14th day of March 2014 at the corridor outside Room 218, Block 6, Po Tin Estate, Ming Kum Road, Tuen Mun, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 0.13 kilogrammes of a crystalline solid containing 0.13 kilogramme of methamphetamine hydrochloride.

Facts admitted

On 14 March 2014 at about 2200 hours, police stopped and searched the defendant at the corridor of the 2nd Floor, Block 6, Po Tin Estate, Tuen Mun. A Pringle potato chips can was found in the defendant’s right rear trouser pocket. There were five transparent re-sealable plastic bags inside the can containing 0.13 kilogrammes of a crystalline solid which were pure methamphetamine hydrochloride, commonly known as “Ice”.

In a video-recorded interview under caution conducted subsequently, the defendant admitted that a male named “Ah Gor” whom he had come to know about two weeks ago gave him the Pringles can outside Block 6, Po Tin Estate and asked him to deliver it to a male named “Ah Fai” at Room 212, Bock 6, Po Tin Estate.

The market value of the “Ice” at the material time was $58,110.

Criminal record

The defendant has one previous conviction of possession of a dangerous drug dated 16 July 2009 for which he was fined $1,500.

Mitigation

Counsel for the defendant has made a thorough and powerful mitigation on behalf of the defendant. The defendant is 31 years old, born in Pakistan and was educated in Hong Kong up to Form 2. He began working in society at a very young age. He is married with no children.

The defence counsel submits to the court a letter of mitigation written by the defendant’s wife. In the letter, the wife describes the defendant as a hardworking and honest person who cares about others. She says that responsibility of the whole family falls on her and the defendant and that the mother of the defendant is in ill‑health. She is of the view that the defendant had been deluded by the others and is falsely accused.

The defence counsel submits the medical certificates of the defendant’s mother certifying that the mother suffers from psychosis.

The defence counsel informs the court that the elder brother of the defendant is of the view that the defendant is innocent.

According to defence counsel, the defendant was unemployed for five months before the offence, and because of financial pressure, the defendant foolishly committed the present case which is the first time the defendant committed such a serious offence. The defendant is remorseful. He was only carrying the drugs for others instead of selling them.

The defence counsel tries to convince the court that part of the drugs was for the defendant’s own consumption. When the court indicates that on the information before it, it does not accept such a mitigation, the defence counsel informs the court that the defence is not taking the matter any further.

The defence counsel points out that the defendant was willing to assist the police to arrest other people involved in drug trafficking, but he needed his mobile telephone to retrieve the telephone numbers of these people. There are then arguments as to whether the defendant was in possession of a mobile telephone when he was arrested.

There is a video clip of the CCTV of the building where the defendant was arrested, that shortly before arrest the defendant was in possession of and was using a mobile telephone.

The prosecution, however, maintains that no mobile telephone had been found and seized from the defendant when the defendant was arrested.

It transpires that in the video-recorded interview, when the defendant offered to assist the police by obtaining the telephone numbers in his mobile telephone, the police already said that no mobile telephone had been seized from him.

On the strength of the information available to the court, the court is of the view that no mobile telephone has been seized from the defendant. The court further points out that according to common sense and experience, drug traffickers would not use mobile telephone numbers which were registered and traceable, and with the lapse of time even if there was a mobile telephone and the defendant was able to retrieve the telephone numbers, they are unlikely to be of any value or use to police investigations.

When the court indicates that the court will not give the defendant a discount in sentence for this reason, the defence counsel decides not to take the issue any further.

The defence counsel asks the court to be lenient to the defendant.

Sentence

The Court of Appeal laid down clear sentencing guidelines for the offence of trafficking in “Ice”. In the case of AG v Ching Kwok Hung [1991] 2 HKLR 125, for a quantity of 70 to 300 grammes of “Ice” the starting point is 10 to 14 years’ imprisonment. The amount of “Ice” involved in this case is 0.13 kilogrammes, which is 130 grammes. The starting point is about 11 years 1 month imprisonment.

As pointed out above, the court does not accept the mitigation of the defendant in respect of part of the drugs being for his own consumption and his giving assistance to the police. It is, however, clear that the defendant was eager to help the police. He offered to assist the police as early as in the video-recorded interview and had given statements to the police in this connection.

Although all this failed to result in any fruitful investigation of the police, the court is prepared to give the defendant a small discount in sentence.

Having considered the whole circumstances, the court adopts a starting point of 10 years 6 months’ imprisonment.

Giving credit to the defendant for his plea of guilty, the court sentences the defendant to 7 years’ imprisonment.