HKSAR v. HASSAN, PIRZADA HARIS

DCCC 713/2024

[2026] HKDC 498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to the first charge on the Charge Sheet, which is one of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  There is a second charge on the Charge Sheet, which is one of wilfully obstructing a police officer in the due execution of his duty.  Nevertheless the prosecution was prepared to not proceed with that charge as a result of the defendant’s guilty plea to the first charge.

3.  The defendant also admitted the summary of facts relating to the first charge.  Therefore he was duly convicted of the charge of trafficking in a dangerous drug.  Accordingly, I ordered that the second charge be left on the court file, and that the prosecution should not proceed with that charge unless with the leave of the District Court or the Court of Appeal.

4.  This is a simple stop and search case.

5.  The facts revealed that, at about 11 p.m. on 15th March, 2024, a detective sergeant, a detective male police constable and a detective female police constable, in a team of three, were performing their patrol duties near Yung Shue Wan Pier, Lamma Island.  They were in plainclothes.  Then and there, they spotted that the defendant was acting furtively.  The defendant’s behaviour raised the officers’ suspicions.  The officers went forward to the defendant, trying to intercept him for an enquiry and a body search.

6.  At the outset the defendant did not put up any resistance.  However, as soon as the police officers had revealed their identities and surrounded the defendant, the defendant pushed the officers away and started a run.  He ran towards the railings along the seaside, and when he was close enough to the seaside he threw a white plastic bag into the sea.

7.  In order to fetch that plastic bag, the male constable immediately climbed over the railings, walked on the stones along the shore and approached the seaside.  Although the plastic bag was still floating, it was 2 to 3 metres away from the shore.  Therefore the male constable could in no way reach it.  While figuring out the way to retrieve the plastic bag, a female passerby handed over a landing net to the constable.  With the landing net, the male constable managed to fetch the plastic bag.

8.  In the presence of the defendant, the police officers opened the plastic bag that they retrieved from the sea.  The officers found that inside that plastic bag there were 76 smaller plastic bags of suspected dangerous drugs.  The contents inside those 76 smaller plastic bags were later certified by the Government Laboratory to be altogether 63.6 grammes of a solid containing 13.6 grammes of cocaine.

9.  At the scene, the police officers arrested and cautioned the defendant for an offence of trafficking in a dangerous drug.  Under caution the defendant said the drugs were for his own consumption.

10.  The defendant was taken to the police station, where police conducted a video-recorded interview with him.  Under caution, the defendant said, inter alia, the following:

(i) he lived in To Kwa Wan;

(ii) he did not have any friend or relative whose residence was on Lamma Island; and

(iii) he was planning to take the drugs back to Central and give them to his friends.

11.  Police estimated that the street value of those drugs was about HK$18,536.80.

12.  In these proceedings the defendant was represented by counsel Mr Donald. For the purposes of a plea in mitigation, Mr Donald had submitted to this court his written submissions and a few authorities.

13.  The defendant is now 30 years old.  He is a Form 8 recognizance holder whose country of origin is Pakistan.  He came to Hong Kong when he was 11 years of age.  As of the date of sentencing his refugee claim has yet to be determined by the Hong Kong authorities.  Because he is a Form 8 holder, he is prohibited from taking up any employment in Hong Kong.

14.  He is married with a 4-year-old daughter.  His father is in Pakistan, whereas his mother, younger sister and younger brother are all living in Hong Kong.

15.  He had a criminal conviction for an immigration offence back in 2015, for which he was sentenced to 15 months’ imprisonment.  In other words, this is the first time that he is convicted of a drug-related offence.

16.  Mr Donald has referred me to those judgments in which the Court of Appeal laid down the sentencing guidelines for trafficking in cocaine.  He pointed out that the defendant has undertaken religious studies and reflected upon himself since his remand for the present offence; and that he is remorseful and therefore pleaded guilty at the first available opportunity.  He also referred me to a letter written by Father John Wotherspoon, saying the defendant had participated in an anti-drug campaign.

17.  Mr Donald invited this court to take into account all the mitigating circumstances and pass the lowest possible sentence on the defendant.

18.  Apart from those, Mr Donald specifically drew this court’s attention to the fact that the defendant had provided assistance to the police in an attempt to help locate the suspect who gave him the dangerous drugs in question.  Mr Donald said that in this regard the defendant had given two non-prejudicial statements to the police.  By referring to those statements, Mr Donald said that the gist of the defendant’s account was as follows: On the day of the offence the defendant received a phone call from his friend, who told him to travel with him to Lamma Island (Note: The defendant has disclosed his friend’s full name in his statements, yet out of consideration of confidentiality his friend’s name has not been disclosed in open court and in this piece of writing).  The two of them met up with each other first in Jordan, Kowloon, and later on went to the pier in Central and got on a ferry heading to Lamma Island.  On the ferry, his friend gave him the drugs in question and told him that those were “coke”.  His friend asked him to take the drugs to Lamma Island, and when everything was done he would be given $1500 as a reward.  He gave details to the police about his friend, including his friend’s phone number.  He also mentioned to the police that at the pier in Central he and his friend had used the same Octopus card when they went through the turnstile.

19.  Mr Donald said that, nevertheless the police did not believe the defendant’s account, and it was for this reason that the police and the prosecution informed the defence, and also this court, that the defendant’s assistance to the police was of no value.  Mr Donald made submissions to the effect that it was only because the police did not try their best to investigate the matter that they came to the conclusion that the defendant’s assistance was of no value.

20.  In this regard I had heard replies from the prosecution.  The prosecution referred to some aspects of the defendant’s non-prejudicial statements, saying that they were inconsistent with the observations made by the police officers at the scene - for instance, the fact that the defendant was walking alone along the shore, but not in the company of anyone else.  Furthermore, the prosecution said the police did conduct investigations into other matters raised by the defendant, including the saying that the two of them were using the same Octopus card at the pier in Central.

21.  I do not intend to recite all the submissions made by the parties in the proceedings.  Suffice it to say that I had given consideration to all the submissions made as well as all the materials placed before me, and that I had reminded myself of the guiding principles on this topic by the Court of Appeal in the cases HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, and HKSAR v Mohammad Fakhrul Alfaqih Bin Saadon [2022] 3 HKLRD 483.

22.  Before I discuss further I should perhaps state briefly why a hearing in chambers was, in this case, not necessary.  Neither the prosecution nor the defence requested that the hearing be conducted behind closed doors.  This is, in my view, a correct understanding of the law.  The current situation is different from those in which the police acknowledged, by way of a letter or statement written by a senior police officer (usually of or above the rank of a superintendent), that the defendant before the court had given useful intelligence or assistance which at the end of the day led to the arrest of a suspect or detection of a crime.  In those circumstances, in order to protect the safety of the informant, namely the defendant, the fact that he or she had provided intelligence or assistance to the authority has to be concealed and removed from the public domain.  Therefore, a chambers hearing in the form of Sivan proceedings has to be held.

23.  In the present case, nevertheless, the prosecution and the defence were in disagreement as to whether the information and assistance given by the defendant was useful.  Furthermore, probably the most important point is, police did not make any arrest as a result of the information and assistance given by the defendant.  This court would think that, in accordance with the guiding principles given by the Court of Appeal in Yeung Hoi Ting, as long as parties did not reveal much of the details and particulars provided by the defendant, then the principles of open justice prevailed and the proceedings should be held in an open court to which the public had access.

24.  It was for such reason that in the passage above I did not mention the name of the friend which the defendant had stated in his non-prejudicial statements.  Also it was for such reason that I refrained from disclosing too much of the details provided by the defendant, such as the phone number of the defendant’s friend and the time they started their journey from Central to Lamma Island, etc.

25.  As the Court of Appeal stated in Yeung Hoi Ting, where the authority (in most cases, the police) has replied that the information and assistance provided by the defendant is not useful, then, in normal circumstances, the defence cannot in court proceedings pursue the matter further and seek to have a review of the authority’s decision.  It is not the function of a sentencing court to question or review the correctness of the authority’s decision.  That being the case, as demonstrated by the facts and the outcome of the appeal in the case Mohammad referred to above, in exceptional circumstances, the sentencing court should not satisfy itself by merely accepting the answer given by the prosecution that “the information and assistance given by the defendant is of no use”.  This, I believe, is particularly so where the defence invites the sentencing court to read the defendant’s non-prejudicial statements and contends that the information and assistance given by the defendant is of some value, or of value of a limited extent.

26.  That was what happened in these proceedings.  As said, both parties referred me to the defendant’s non-prejudicial statements.  I would say that, it was perhaps premature for the police to conclude that the defendant’s version was not worthy of belief merely on the ground that the police officers at the scene only saw the defendant but not another person (who the defendant said was his friend).  I believe there are at least three aspects which the police could further investigate.

27.  The first aspect relates to the Octopus card said to have been used by the defendant and his friend at the pier in Central.  The prosecution did reply that, police’s inquiry revealed that the Octopus card in question had been tapped twice at the entrance hall at the pier in Central.  Common sense dictates that the defendant would not have tapped his Octopus card twice at the same spot.  The only possible explanation for that is two persons were travelling together by using only one Octopus card.

28.  The second aspect is about the two mobile phone numbers given by the defendant.  The prosecution said one of those two numbers was a foreign phone number.  I accept that such could not have been the number used by the defendant’s friend when he rang up the defendant and asked him to go with him to Lamma Island.  However, I have some reservation about the prosecution’s saying that the other phone number was a prepaid SIM card number without any subscriber.  The prosecution did not say that the service of that number had already been terminated. In other words that number, as of the date of the offence, was still in good service.  This court takes judicial notice that, under the Telecommunications (Registration of SIM Cards) Regulations, Cap. 106AI, starting in early 2023, it was mandatory for all users of prepaid SIM cards to undergo a real name registration with the service providers or telecommunications authority if they were to continue using their prepaid SIM cards.  What I do not understand is, why the police could not check the name under which the prepaid SIM card was registered.

29.  The third aspect, which is the most important of all, is that the defendant did mention the name, and even the prisoner number of his friend in his non-prejudicial statements.  However, police did not visit the correctional institution in which the defendant’s friend was detained and conduct an interview with the defendant’s friend with regard to the suspicion that he was the one who supplied the drugs to the defendant.

30.  In those circumstances, I agree with Mr Donald’s submission that the defendant’s assistance to the police should not be regarded as “of no use”, but should at least be classified as “of limited value”.  Following Yeung Hoi Ting, I consider that, in the light of the defendant’s guilty plea and the assistance rendered, the discount should be about 37.5%.

31.  In this sentencing exercise, I reminded myself that the applicable guidelines are to be found in the Court of Appeal’s judgments in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Huang Ruifang, CACC 106/2022, [2025] HKCA 234.  The latter was a judgment handed down in March 2025, in which the Court of Appeal conducted a review of the then existing sentencing guidelines applicable to various dangerous drugs including cocaine (see paragraph 62 thereof).

32.  According to the sentencing guidelines in Huang Ruifang, in cases of trafficking in cocaine, where the weight of the narcotic content is between 10 grammes and 50 grammes, the starting point should be one of between 5 and 8 years’ imprisonment.  That is the guideline applicable to a courier.  If there is evidence that the defendant assumed a more serious role in the matter, for example that of a drug dealer, then the starting point should be adjusted upwards.

33.  In the present case, the defendant was stopped and searched near the seaside.  There is no evidence that he assumed a role other than that of a courier.  Also, consistent with the discussion above, it is more likely than not that he was acting under the instructions given by his friend.  In those circumstances, I would proceed with sentencing on the basis of the defendant being a courier simpliciter.

34.  Mr Donald submitted that given the quantity of the cocaine being 13.6 grammes, this court should adopt a starting point of 5 years, that is 60 months.  With respect, the starting point suggested is a bit too low.

35.  Having considered all the circumstances, I consider that the appropriate starting point should be one of 63 months’ imprisonment.  As discussed above I am prepared to give a 37.5% discount to the defendant. The sentence is therefore reduced to 39.375 months.  This is further rounded off to 39 months.  Apart from those I do not see any other factor warranting a further reduction.

36.  In the circumstances, I sentence the defendant to 39 months’ imprisonment.