HKSAR v. MOHAMMED EYAZUDDIN

DCCC 599/2018

[2019] HKDC 292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 599 OF 2018

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REASONS FOR SENTENCE

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1.  This defendant, D1, together with another defendant D2, are jointly charged with one count of trafficking in a dangerous drug, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded guilty and admitted the relevant facts and was convicted accordingly.

The admitted facts

2.  At around 7 am on 30 November 2017, a customs officer spotted D1, an arriving passenger from India, appearing to be suspicious, and then intercepted him at the Green Channel, Customs Arrival Hall B, Hong Kong International Airport.

3.  When requested, D1 took out a key from his shoulder bag and then unlocked his suitcase.  Upon search, two carton boxes were found in the suitcase.  A customs officer opened the boxes and found a number of Jaljira Powder Boxes containing packets of cannabis resin.

4.  In summary, 26 packets containing a total of 3.565 kg of cannabis resin were found in one carton box, and 21 packets containing a total of 2.940 kg of cannabis resin were found in another carton box.  The total quantity is as set out in the particulars of the charge, namely, 6.505 kg of cannabis resin.

5.  D1 was arrested.  Under caution, D1 stated, among other things, that someone would call him and pick up the suitcase.  D1 claimed that he did not know what the cannabis resin seized was, and also did not know who would call him.

6.  D1 then expressed his willingness to cooperate with customs officers to locate the person who would collect the suitcase from him.  As a result, a controlled delivery operation was mounted.  At around 12:40 noon on the same day, customs officers together with D1 went to a room of a guesthouse known as “Apple Hostel” in Tsim Sha Tsui.

7.  D1 then received several calls to his mobile phone and he gave the address of the guesthouse room to the caller(s).  At around 3:39 pm on the same day, D1 received a call to his mobile phone again and the caller stated that he was stopped by a staff of the hostel.  A few minutes later, D1 opened the door and then an Indian male (later known as D2) entered the room.  D2 was then arrested.

8.  At around 5:30 pm on the same day, D2 led customs officers to his residence.  Upon search, a similar carton box containing 8 Jaljira Powder Boxes (which resembled the Jaljira Powder Boxes found in D1’s suitcase) were found under a bed at D2’s residence.

9.  In D1’s subsequent video-recorded interview which was conducted on 1 December 2017, D1 under caution stated, among other things, that:

(a) He had a graduate degree, and was a businessman;

(b) He had a small shop, selling and repairing mobile phones, and he also had a garment business with his father;

(c) He had been to Hong Kong many times since 2014, for buying or carrying clothes, mobile phones and laptops, from Hong Kong to India;

(d) He had brought Indian goods to Hong Kong many times before, and sometimes, he received remuneration for the delivery;

(e) He claimed that he did not know what was inside the suitcase;

(f) His friend in India bought a two-way ticket for him, and told him to bring some Indian goods to Hong Kong;

(g) The friend told him to inform him when got out of the airport. Then, the friend asked him to give his phone number to him, and also told him that the friend’s friends in Hong Kong would collect the said Indian goods from him;

(h) The friend gave him a suitcase, and the key of the suitcase;

(i) He claimed that he did not open the suitcase;

(j) He planned to stay at a guesthouse, and then take some goods and go back to India on 1 December 2017;

(k) He claimed that except the said two-way ticket, he did not get any reward for carrying the said Indian goods from India to Hong Kong;

(l) He claimed that he did not know D2; and

(m) When he was in a room with customs officers, D2 called him.

10.  The street value of the cannabis resin seized in this case is estimated to be around HK$468,360.

D1’s background

11.  D1 is an Indian male who was born in 1988.  He is now 31 years old and is married.  He has no criminal record in Hong Kong.  He has received university education.  He was a mobile phone businessman earning 30,000 to 40,000 rupee per month (approximately HK$3,360 to HK$4,480) prior to his arrest.

Mitigation

12.  Mr Percy on behalf of D1 submitted that there are a number of mitigation factors in this case.  First of all, he had tendered his indication of guilty plea at the mention hearing, and that would earn him the usual one-third discount.  In addition, he offered assistance to the customs officers shortly after his arrest by taking part in a controlled delivery operation which eventually led to the arrest of D2.  He should be given further discount for the assistance rendered.

13.  It is accepted that there is an aggravating factor in this case, as it was an import of drug from abroad.  Mr Percy suggested that enhancement of sentence should be in the region of 6 months. And the decision of the Court of Appeal in HKSAR v Chung Ping Kun CACC  85/2014 was referred to but it was only for reference only because that case dealt with “hard drugs” like heroin, cocaine and ice.

14.  In relation to the starting point, it is submitted that under the guideline set out in AG v Tuen Shui Ming & Anor [1995] 2 HKCLR 129, for trafficking in cannabis resin in the region of 6,000 g to 9,000 g, the usual starting point should be one of 3 to 4 years.

15.  A letter written by D1 was submitted which set out his background and family circumstances.  It is said that he had his elder sister and brother and also wife in India, and that D1 himself had a business at home.  The business was going down day by day, and as a result, he had to take out bank loans and was in debt.  It was also said that his wife was admitted to hospital and was in critical condition.  D1 in his letter asked the court for a chance and he apologised for having done this “dirty job” and he promised that he would never commit the same mistake.

16.  In view of all the circumstances as aforesaid, Mr Percy suggested that the minimum starting point of 3 years’ imprisonment is appropriate in view of his background and clear record, and an enhancement of 6 months would be sufficient to reflect the “international element”.  He should be given more than one-third discount, namely, 40% discount for his guilty plea as well as his assistance offered to the authority.

Sentence

17.  This is a case of trafficking in cannabis resin by way of importing from India to Hong Kong.  The quantity involved as said was 6.505 kg.

18.  Also as said, there are clear sentencing guidelines set out in AG v Tuen Shui Ming & Anor.  For trafficking in over 6,000 g of cannabis resin, the starting point should be one of 36 to 48 months’ imprisonment, for over 9,000 g, 4 years upwards.  The cannabis resin involved in this case is about 6.5 kg, I shall adopt a starting point of 3 years and 2 months’ imprisonment.

19.  As rightly and fairly accepted by Mr Percy for D1, there is an aggravating factor in this case which is commonly described as “international element” of the offence.  As said, D1 being an Indian national, committed the current offence by importing dangerous drugs into Hong Kong.  There are Court of Appeal decisions suggesting different levels of enhancement for that “international element” in respect of drugs of different nature.  For heroin, cocaine and ice, see for example, the authority submitted and referred to by Mr Percy in HKSAR v Chung Ping Kun.  And for ketamine, reference can be found in another Court of Appeal decision in HKSAR v Chan Ka Yiu CACC 147/2016.  There are, however, none specifically for cannabis resin.  Those guidelines which I just mentioned could not be directly applied in this case because of the different nature of the drug involved, but they can be used for reference.

20.  For instance, for trafficking in 3,000 g of ketamine, the usual starting point is one of 20 years’ imprisonment and the suggested enhancement for the “international element” as said in Chan Ka Yiu is 2 years’ imprisonment.  Having considered the nature of the drug involved in this case being cannabis resin which is less serious than ketamine, I am of the view that the proper enhancement for the “international element” in this case should be 4 months.  That brings the starting point which I just mentioned to 3 years and 6 months’ imprisonment.  Though arriving at from a slightly different route, it is the same starting point of 3 years and 6 months’ imprisonment as suggested by Mr Percy for D1.

21.  I now come to consider the mitigation in this case.  The timely plea of guilty and the assistance given by D1 in the controlled delivery operation should be reflected in the final sentence.  It was decided as early as in Z v HKSAR (2007) 10 HKCFAR 183 that a discount of 40% (including the one-third reduction for a guilty plea, is usually given to a defendant who had provided assistance to the authority without testifying against others in court.  In the circumstances of this case, I am prepared to give a 40% discount to D1 for the assistance offered by him. As said, I adopt a starting point of 3 years and 6 months, i.e. 42 months’ imprisonment.  I give a 40% discount for D1’s guilty plea and assistance rendered to the authority, the final sentence is therefore slightly more than 25 months, i.e. 25.2 months to be specific.  To round up the figure, I order D1 to be sentenced to 25 months’ imprisonment.