HKSAR v. HASSAN WAZID

HCCC 119/2018

[2018] HKCFI 2062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 119 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug. He was committed to Court of First Instance at the High Court for sentence.

In sentencing, I have considered the whole circumstances of the case including his nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarized as follows.

In the midnight, police officers intercepted the defendant, having seen him acting furtively and tried to hail a taxi. Upon search, four resealable transparent plastic bags each containing cocaine and wrapped in a piece of tissue were found from the left rear pocket of the pants the defendant was wearing. The quantity was 89.7 grammes of a solid containing 85.1 grammes of cocaine.

The defendant is now 35 years of age. He was born in Bangladesh and has never received any education. He is married and has a son, 12 years old and a daughter, 3 years old. As he is in debt in Bangladesh, he came to Hong Kong for asylum. He is staying in Hong Kong on recognisance having filed a non-refoulement claim. He did not have any previous conviction record. He has aged parents both not enjoying good health, and he had been looking after before leaving country.

In mitigation, learned counsel for the defence, Mr Parry, stressed that the defendant had pleaded guilty at the earliest opportunity. He urged the court to accept that since the defendant is an asylum seeker, he is not allowed to work in Hong Kong. He was in financial difficulties and had been tempted under such situation to commit the crime. It was also his instruction that they defendant was minded to provide the police with information, however it had come too late when interpretation service was only provided two days after his arrest. In his letter, the defendant said he wanted to earn some quick money so that he could improve the situation of his family back home in particular as his parents need money for medical treatment. He also expressed remorse.

The dangerous drug which defendant trafficked in was cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable. Since narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of 8 to 12 years’ imprisonment was suggested but in case of trafficking in heroin if the narcotic content is 50 to 200 grammes. Having considered all circumstances, bear in mind that this is the first time the defendant committed a dangerous drug related offense. I do not see any grounds to depart from the tariff.

In my judgment, just taking into account the quantity of the drug in question, an initial starting point of 8 years and 9 months is appropriate.

The defendant is staying in Hong Kong on recognisance and has lodged a non-refoulement claim. Having regards to cases such as HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, HKSAR v Londono Montealegre [2017] 1 HKLRD 450 and HKSAR v Ali Saif CACC 309/2017.

Having regard to submission by learned defence counsel, I am of the view that the starting point showed be enhanced by 12 months. From the ultimate starting point of 9 years and 9 months the defendant is entitled to a one-third discount as he had pleaded guilty at the earliest opportunity.

Having considered the whole circumstances including what learned defence counsel said ably on behalf of the defendant, I am of the view that one-third is the extent of discount the defendant is entitled to.

By reason of the matters foresaid, you're sentenced to an imprisonment term of 6½ years.