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HCCC 172/2019
[2019] HKCFI 2362
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 172 OF 2019
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| Before: |
Hon Campbell-Moffat J |
| Date: |
11 September 2019 at 10.31 am |
| Present: |
Mr Oscar Tan, PP of the Department of Justice, for HKSAR |
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Mr Kamlesh Sadhwani, instructed by Robertsons, assigned by DLA, for the accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
Mr Islam, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 in that you imported into Hong Kong 426.8 grammes of ‘Ecstasy’ from the Netherlands via commercial airfreight on 11 July 2018. The parcel was intercepted at the Air Mail Centre of Hong Kong International Airport. When examined, there were in excess of 2,000 tablets inside the parcel destined for you personally. As a result, a controlled delivery was carried out and on 18 July, you attempted to retrieve the parcel, which you did successfully.
However, on arrest and caution, you told Customs and Excise that the parcel was a gift from a friend and contained clothing. You were adamant that you were not going to pass on the contents of the parcel to anyone else and therefore a further controlled delivery was not carried out, and you could not seek any credit for that.
You had two mobile phones and two SIM cards on you at the time of your arrest, one of which was the number recorded on the airway bill addressed to you and which contained messages relating to the parcel. You also had in your possession a false tenancy agreement which purported to show you were the tenant of the address to which the parcel was directed, no doubt to be used when you sought to collect it.
Under interview you chose, as is your right, to say nothing about this matter.
This ‘Ecstasy’ had a street value in July 2018 of $155,463.
I note from the written submissions of Mr Sadhwani and from your antecedent statement that you are 33 years of age, from Bangladesh and you are a Form 8 holder, having come to Hong Kong in 2014. You are the subject of a removal order dated 1 June 2017, but you are currently awaiting notification of your appeal to the TCAB. You have a previous conviction for possession of a Part I poison for which you were fined in November 2017. That is a minor matter which I have not taken into consideration. You have now pleaded guilty to importing dangerous drugs in July 2018 for which you were to receive a reward of just HK$2,000. Mr Islam, you clearly have no respect for our laws or for the fact that you are a guest in this country.
For trafficking in 426.8 grammes of ‘Ecstasy’, the guideline case is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For trafficking in between 300 and 600 grammes of ‘Ecstasy’, the range of sentence is between 9 and 12 years. For trafficking in 426.8 grammes, therefore the starting point after trial will be 10 years and 3 months.
But there is also the aggravating feature of the importation of these drugs from the Netherlands. In accordance with HKSAR v Abdallah [2009] 2 HKC 197, those who import drugs into Hong Kong should expect a further sentence. For ketamine, which is a drug of similar efficacy to ‘Ecstasy’, the Court of Appeal in HKSAR v Chan Ka Yiu CACC 147/2016 has said that a period of imprisonment of up to 6 months is appropriate for up to 500 grammes. I will therefore enhance your sentence by 6 months for the element of international importation. That will make 10 years and 9 months.
There is also the fact that you have come to this country to claim refugee status and have been a guest in our country since 2014. It ill behoves those who seek refuge in Hong Kong to commit crimes against society, which is what you have done. The range of appropriate sentence upon the authorities supplied to me has been between 6 months and 18 months for that. This depends, of course, upon the circumstances of the case. I have decided to link the enhanced sentence to the type of drug you have caused to bring into the country and to the logic applied to Abdallah and Chan Ka Yiu. If the enhanced sentence for international importation is different, depending upon the narcotic content of the drug, I can see that the enhancement for being a Form 8 holder and committing a criminal offence may vary, dependent upon the nature of the crime; in this case, the narcotic content of the drug. Therefore, I am prepared to enhance your sentence by only 6 months. That will make a final sentence of 11 years 3 months before discount.
There is no other mitigation which can affect the sentence I must pass other than the full one-third discount for your early plea. You will go to prison for 7 years and 6 months.
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