HKSAR v. SHBUJ KAZIALI HOSSAIN AND ANOTHER

HCCC 403 & 404/2017

(Heard together)

[2018] HKCFI 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 403 & 404 OF 2017

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

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COURT:

The defendant respectively in these two cases was originally charged jointly with two charges of trafficking in a dangerous drug, one of them, Hossain, whom I will call D1, pleaded guilty to both charges before a magistrate, and was committed to the Court of First Instance for sentence. The other defendant Sohel, whom I will call D2, was committed for trial, and a date for trial has been fixed. Today, he pleaded guilty before me to the two counts. With consent of all parties, the two defendants are sentenced together.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the dangerous drugs involved, personal background of the two defendants, and mitigation put forward on their behalf.

The facts of the case may be summarised as follows. D2 came to the hotel in question. He approached the reception counter, and did something. Then he took a lift to 16th floor and entered Room 1610. About 15 minutes later, D2 came out from the room and left the hotel. A couple of minutes later, D1 left the room carrying a sling bag. He was stopped by police officers. Inside the sling bag, five packets of cocaine were found. He said the dangerous drug was given to him by D2. D2 was stopped by police officers at a café nearby. He put up a struggle and tried to flee. He was eventually subdued and arrested.

With the key card found on D2, police officers entered the room. A search was conducted in the presence of both defendants. There was an electronic safe in the room. It was opened with the passcode provided by D1, who said he knew the passcode when he watched D2 opening the safe earlier. Inside the safe, 15 packets of cocaine were found.

The room was rented with an identity card in the name of another man, who had already died a year before the incident.

In a subsequent interview conducted in the police station, D1 said he came to know D2 about a year prior to the incident. On the day of arrest, upon invitation of D2, he rented the hotel together with him. D2 gave him the key card and told him to go to the room first. When D2 came to the room, he opened the safe by entering a passcode, which D1 was able to see. He took the drug out from the safe, and told D1 it was drug. D2 then took a bag out from the toilet, gave it to D1, telling him there was drug inside. D2 then left. Shortly afterwards, D2 called D1, telling him to leave the room. It was the first time D1 delivered drug for D2. He was promised a reward of $2,000 for successful delivery.

D2 was also interviewed. He said D1 had asked him to get some money from an unknown man, and he paid the hotel fee with some of the money he obtained. He said he went to a beach near the hotel, as D1 asked him to pick up his girlfriend.

I remind myself, as D1 and D2 admitted to two different Summary of Facts, in considering the case in respect of each defendant, I will confine to what that defendant had admitted, and will not take into account what the other defendant admitted, even if the facts this other defendant admitted includes incriminating material against him.

I was told that D1 and D2 were both born in Bangladesh, and are 28 years in age. Both of them sneaked into Hong Kong, D1 in 2014, and D2 in 2013. Both have since then been unemployed. D1 is single, D2 has a steady girlfriend and a child. Both have filed a non-refoulement claim. They live in Hong Kong alone and with family still in Bangladesh.

D1 has a clear record. D2 does not have a clear record. In 2014, he was convicted of unlawful remaining and common assault. In 2015, he was convicted of possession of dangerous drug and theft.

In mitigation, learned counsel for D1, Mr Fenton, stressed that D1 had pleaded guilty at the earliest opportunity, and that he had been co-operative to the authorities. Not only did he make frank admission upon arrest, he also provided a non-prejudicial statement implicating D2, the content of which is consistent with what he said under caution, as outlined in the Summary of Facts. He also asked the court to take into account that this is the first conviction of D1.

Learned counsel for D2, Mr Raffell, whilst accepting that it is an aggravating factor for D2 being a non-refoulement claimant, asked the court to confine the enhancement to months, since the offence itself already carries a heavy sentence.

The dangerous drugs in the sling bag carried by D1 was 2,496 grammes of a powder containing 1,868 grammes of cocaine. The dangerous drugs inside the electronic safe was 7,479 grammes of a powder containing 5,338 grammes of cocaine. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. Lau Tak Ming only provided a tariff for cases involving narcotic contents up to 600 grammes. In the later case of HKSAR v Abdallah [2009] 2 HKLR 437, the Court of Appeal set out further guidelines for cases involving larger quantity. It was held that for cases involving narcotic content of 1,200 to 4,000 grammes an imprisonment term of 23 to 26 years should be considered. If the narcotic content is 4,000 to 15,000 grammes, an imprisonment term of 26 to 30 years should be considered.

In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff. Both defendants are non-refoulement claimants. In this status, they committed a serious crime. It is an aggravating factor. Having regard to HKSAR v Mahabul Alam Khan CACC 116/2016, bearing in mind the risk of excessive enhancement, I enhance the starting point for each defendant by 1 and a half years.

In my judgment, the difference in culpability between the two defendants is insignificant for the purpose of sentencing. Despite D2 has criminal conviction records, it has little effect on sentence in the present case. I adopt the following starting point for both defendants.

Charge 1, 25 years and 3 months.

Charge 2, 28 years.

In deciding the total sentence, I bear in mind the totality principle and take into account the total quantity of the dangerous drugs involved, which was 9975 grammes of a powder containing 7,206 grammes of cocaine.

Having regard to Abdallah and the 1 and a half years’ enhancement I mentioned earlier, I am of the view that an ultimate notional total starting point of 28 years and 9 months is appropriate for both defendants.

D1 pleaded guilty before a magistrate and for this reason is entitled to a one-third discount. I have considered whether D1 is entitled to any further discount for his assistance to the authorities. In this regard, learned counsel for the prosecution, Mr Polson, informed the court that it was the view of the prosecution that the information provided by D1 is not useful, and in any case, it has never been envisaged that D1 will be called as a prosecution witness in the trial of D2.

In all the circumstances, having regards to submissions from both sides, I am persuaded to let D1 have a further discount of 8 months in his final sentence.

D2 pleaded guilty after committal and after the case has been set down for trial in the Court of First Instance. The approach as advanced in HKSAR v Ngo Van Nam CACC 418/2014 is applicable, and the defendant is, in my judgment, entitled to a discount of 20 to 25 per cent.

In all the circumstances of the case, I am of the view that a discount of 25 per cent is appropriate.

Having considered the whole circumstances, including mitigation submission, in my judgment, the above is the extent of discount each defendant is respectively entitled to.

So defendants please stand up. For the above said reasons, D1, Hossain, I sentence you to 16 years and 2 months’ imprisonment for Charge 1, and 18 years for Charge 2. Having regard to totality, I order 2 years and 4 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1. You are to serve a total sentence of 18 and a half years’ imprisonment for the two charges.

And D2, Sohel, I sentence you to 18 years and 11 months’ imprisonment for Count 1, and 21 years’ imprisonment for Count 2. Having regard to totality, I order 2 years and 7 months of the sentence for Count 2 to run consecutively to the sentence for Count 1. You are to serve a total sentence of 21 and a half years for the two counts.