HKSAR v. KASHIF

HCCC 382/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 382 OF 2014

----------------

------------------

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

COURT: The defendant, Mr Kashif, pleads guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The 1st count alleges that the defendant, on the 16th day of January 2014, at the entrance of Lin On Building, No 17-23A Luen On Street, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.38 kilogrammes of cannabis resin.

The Particulars of Offence of Count 2 is that the defendant, on the same day at Flat 2 8th Floor of the building named in Count 1, unlawfully trafficked in a dangerous drug, namely 21.54 kilogrammes of cannabis resin.

Facts Admitted

On 16 January 2014, at about 0938 hours, Customs officers stopped and searched the defendant outside the entrance of Lin On Building, 17-23A Luen On Street, Ngau Tau Kok, Kowloon, and found two plastic bags inside the backpack the defendant was carrying. Inside the two plastic bags, there were a total of 803 packets containing 6.38 kilogrammes of cannabis resin.

On being arrested and cautioned, the defendant said that he did not know what was inside the backpack and the backpack had been given to him to give to another friend.

With the keys found on the person of the defendant, Customs officers gained entry to Room 2, 8th Floor, Lin On Building. In the false ceiling near the door and inside the toilet of the flat, Customs officers found a total of 1,482 packets containing 21.54 kilogrammes of cannabis resin. An electronic scale was also found inside the living room of the flat.

On being arrested and cautioned, the defendant denied any knowledge of the drugs and said he did not live in the flat and the keys to the flat had been given to him together with the backpack.

The estimated market retail value of the drugs seized was $2,373,200.

Criminal Record

The defendant has one previous conviction of using a forged Hong Kong identity card and of taking employment without authority of the Director of Immigration after landing unlawfully in Hong Kong, for which he was sentenced to a total of 15 months’ imprisonment on 30 April 2012.

Mitigation

The counsel for the defendant makes a thorough and powerful mitigation on behalf of the defendant. He tells the court that the defendant is aged 27, born in Pakistan, received primary 5 education. His family was in the business of raising poultry in Pakistan. In 2007 his family had some political problems with some local politicians in Pakistan who threatened to kill the defendant.

The defendant left Pakistan in February 2007 and later entered Hong Kong illegally. He was arrested about a month later and was released on recognizance for investigations into his claim as a political refugee. He married to a Pakistani girl who is a Hong Kong resident in 2012. In August 2013, he was lured by Imam Ishak, the person named in the Summary of Facts, to commit the present case to earn quick money to subsidise his allowance from the Social Welfare Department. While he was in detention after being arrested, his wife gave birth to a baby girl on 14 June 2014.

The defence counsel cites two authorities to the court which the court will deal with later. He emphasises that the defendant has pleaded guilty and has provided information to the Customs & Excise regarding the other culprit in the present case. He asks the court to give the defendant a discount in sentence for these mitigating factors.

Sentence

The Court of Appeal laid down sentencing guidelines for trafficking in cannabis resin in the case of AG v Tuen Shui Ming & Another [1995] 2 HKCLR 129. This is also the case cited to court by the prosecution to assist the court in sentencing.

According to this case, for a quantity of 6 kilogrammes to 9 kilogrammes of cannabis resin, the starting point is 3 to 4 years’ imprisonment, and for a quantity of over 9 kilogrammes of cannabis resin, the starting point is 4 years’ imprisonment and upwards.

The 1st count involves 6.38 kilogrammes of cannabis resin and the starting point is approximately 3 years imprisonment. Count 2 involves 21.54 kilogrammes of cannabis resin which is substantially more than the quantity within the sentencing guidelines of Tuen Shui Ming.

The prosecution cites the case of HKSAR v Touray Edrisa & Another, CACC 124/2010, in which the Court of Appeal upheld a starting point of 6 years imprisonment for trafficking in 30.26 kilogrammes of herbal cannabis where international element was involved.

The defence cites the cases of HKSAR v Sherpa Chhewan Gyabu, CACC 220/1998 and HKSAR v Gurung Suraj, CACC 225/2014. In the former case, the Court of Appeal held that for a defendant who was arrested for trafficking 13 kilogrammes of cannabis resin at the Customs Arrival Hall of Lo Wu Control Point, the appropriate starting point was 5 years imprisonment.

In the latter case, 6.07 kilogrammes of cannabis resin was found inside a parcel arrived in Hong Kong International Airport from Mumbai, India, and on the controlled delivery of the parcel to the address set out in it, further cannabis resin was found. The total amount of cannabis resin found was 15.2 kilogrammes. The Court of Appeal affirmed the starting point of 5 years imprisonment.

With the exception of the case of Tuen Shui Ming, the cases cited by the prosecution and the defence involved international element and either involved herbal cannabis or of a much smaller amount of cannabis resin than the present case. The court does not find these cases particularly useful, although the court does take them as reference.

In Tuen Shui Ming, Power VP said:

“We are satisfied that a sentencing court must now bear in mind that cannabis resin has an average concentration of tetrahydrocannabinol about four times higher than the average found in herbal cannabis and that cannabis oil has an average also of four times higher than the average in cannabis resin.

Taking this into account, a sentencing judge must adjust the tariff which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should, as we have already indicated, be within the range dictated by the starting point indicated in the tariff.

Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had the similar amount of cannabis resin should offenders be discovered with cannabis oil and we think an increase of at least that length would be warranted.

These observations are not meant to fetter the judge’s discretion, particularly in the first band. Tariffs, as we have said in the past, are not a straitjacket. A judge must bear the tariff in mind when sentencing but must, in the outcome, arrive at a sentence which gives proper weight to the facts of the case before him.”

It can therefore be seen that the concentration of the cannabis is an important factor to consider in determining the sentence. The court is unable to find any case of sentencing in which a similar amount of cannabis resin as in the present case was involved.

In the case of R v Wan Pui Hay, HCCC 94/1986, a defendant convicted after trial of trafficking in 12.1 kilogrammes of cannabis resin was sentenced to 5½ years imprisonment. In R v So Chin Chiu [1994] HKCLR 106, the Court of Appeal upheld a starting point of 8 years imprisonment for trafficking in 93.26 kilogrammes of herbal cannabis.

Although it is often said that mathematical progression in sentencing in drug cases is not always appropriate, the court should ensure that the sentences are consistent and reasonably predictable and do not differ substantially in similar cases.

As pointed out in Tuen Shui Ming, sentencing courts should bear in mind that cannabis resin has an average concentration four times higher than the average concentration of narcotics found in herbal cannabis. In the So Chin Chiu case, the amount of herbal cannabis was 93.26 kilogrammes which is equivalent to about 23 kilogrammes of cannabis resin in terms of concentration, which is quite near to the quantity of cannabis resin in Count 2 in the present case.

The defendant committed the offence for economic reasons which certainly cannot constitute valid mitigation. The court therefore adopts 3 years imprisonment as starting point for Count 1.

Taking into consideration the cases of So Chin Chiu and other cases, and the fact that the narcotics strength of cannabis resin being four times that of herbal cannabis is a conclusion arrived at on an average basis, the court adopts 7 years’ imprisonment as the starting point for Count 2.

Giving credit to the defendant for his plea of guilty, the court sentences him to 2 years imprisonment for Count 1 and 4 years 8 months imprisonment for Count 2.

Having considered the nature of the case and the totality principle, the court orders 4 months of the sentence of Count 1 to run consecutively to that of Count 2.

The defendant is therefore to go to prison for a total of 5 years.

Although the defendant has given certain information to the Customs & Excise, he only did so on 14 April and 10 June this year, which are more than one year after he was arrested. It is therefore not surprising that the Customs & Excise is unable to locate the person named in the information within a short time. The court is of the view that under such circumstances, it cannot give the defendant any discount in sentence for information he has given at this stage. Should the information later turn out to be fruitful, the defendant can appeal out of time to the Court of Appeal for a reduction in sentence.