HKSAR v. FAYAZAN ALI

DCCC1322/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1322 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The first charge is trafficking in dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance; and the second charge is that of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap.232.

2.  You admitted that on the 24th day of September 2010, outside Kam Koon Building at Lockhart Road in Wanchai, you unlawfully trafficked in 12.09 grammes of a solid containing 7.39 grammes of cocaine. You also admitted that on that same day at the same place, you resisted Police Constable 6352, a police officer of the Hong Kong Police Force acting in the execution of his duty.

3.  On 24 September, at about 7 pm, the officer, PC6352, saw you acting suspiciously at the junction of Hennessy Road in Wanchai.  He approached you and revealed his police identity by displaying his warrant card.  You immediately turned around and fled.  The officer gave chase and held onto you from behind.  You resisted him by moving both of your arms and, as a result, you lost your balance and fell onto the ground.  The officer told you he was “police, don’t move.”  However, you kept on struggling.

4.  To avoid capture, you then managed to crawl underneath an unattended coach which was parked nearby, and at that time the officer was holding onto both of your legs.  You used both of your legs to kick the officer, and one hit his left shoulder and right forearm.  The kick caused the officer to lose his balance and he too fell on the ground.  During the struggle, the officer’s jeans were torn and his right knee was injured. Needless to say, the officer was on patrol in plainclothes.  With the help of other police officers, you were subdued and arrested.  From the left pocket of your trousers, the officers found a plastic bag containing the drugs. 

5.  You were arrested, and cash of HK$727, £5, 10 SIM cards, 2 mobile phones and 2 wallets were found on you. 

6.  The officer had suffered tenderness to his left knee, redness to his left forearm and abrasion to his left knee and right shoulder.

7.  The drugs had an estimated street value of $6,687.

8.  Defendant, your solicitor, Mr Dosani, has made very full and thorough mitigation on your behalf, and I have taken into account all that he has had to say.  You are 23 years of age, born in Pakistan and single.  You have been to court on four separate occasions and have five previous convictions.  Two of them are for possession of dangerous drugs.  The other is for possession of equipment for smoking, injecting or inhaling dangerous drugs.  The others are illegally remaining in Hong Kong and theft.

9.  I am informed that you had illegally entered Hong Kong via mainland China in 2006.  You later registered as a torture claimant and are here as a registered torture claimant.  At the time you were convicted of illegally remaining, of course you were not registered as a torture claimant.  The theft charge of that case was in relation to a paper which identified you as a torture claimant or it was somebody’s torture claimant paper.  

10.  I am informed that you have studied up to Primary 6 and worked in Pakistan as a part-time private taxi driver earning about $2,000 a month, I believe in Hong Kong in the old days commonly known as a “pak pai”.

11.  I am informed that whilst you have been in Hong Kong, you have been financially supported by your father and brother who send money from Pakistan.  They give to you two to three thousand dollars a month, and therefore you have not claimed any financial assistance from the ISI or the Social Welfare Department.

12.  Mr Dosani concedes that seeing from your record that you are a drug addict and drug dependent.  You took to taking drugs more so by smoking them as you felt lonely and rejected and more particularly about what would happen in the future.  You would have shared these drugs with others.  I am informed that these drugs were purchased from a Chinese male in Wanchai.  Although the street value was $6,600-odd, you only paid $2,000.  I have to say that I find that a little difficult to believe as that is a discount of more than half of the value of the drugs.

13.  I am also told that the 10 SIM cards found on you, 9 were used, expired, pre-paid SIM cards, and you kept them because telephone numbers of some of your friends and relatives were stored in those SIM cards.  You had intended to retrieve important personal telephone numbers from those expired SIM cards.  Again, I find this explanation as to these nine expired SIM cards difficult to accept.

14.  You were found with two mobile phones on you, and you said that you had them on you because your phone was not functioning properly and therefore you borrowed a friend’s for temporary use.  Again, I find this difficult to accept.   

15.  Clearly, if this was a case which was fought on the basis of trafficking, these matters might tend to go to support the prosecution’s case of trafficking.  So it is neither here nor there that I do not accept that part of your mitigation now.  The strongest mitigating factor of course in your favour is the fact that you have pleaded guilty.

16.  As you have, I am sure, been well advised by Mr Dosani that trafficking in dangerous drugs is a very serious offence and warrants immediate custodial sentences.  Your solicitor has correctly referred to the case of Lau Tak Ming as the tariff guideline case in sentencing for trafficking in cocaine. 

17.  In regard to the 2nd charge of resisting arrest, Mr Dosani urged me to kindly consider a concurrent sentence on this offence as it arises out of the same facts.  It does arise from the same facts.  However, I feel that a fully concurrent sentence is inappropriate as this was not a minor offence of resisting arrest.  You had resisted the officer quite violently and for a prolonged period of time, going to great extents to escape his control by vigorously resisting the police officer.  In so doing, by kicking him, you caused him some minor injuries.  In my view, it is not appropriate in those circumstances to impose a fully concurrent sentence.

18.  Defendant, for the trafficking charge, you had trafficked in 7.39 grammes of cocaine, and that falls within the first bracket of Lau Tak Ming where the guideline up to 10 grammes is between 2 to 5 years’ imprisonment after trial. 

19.  Taking the quantity of drugs you had for trafficking, I take a starting point of 4 years’ imprisonment.  Giving you full credit for your plea of guilty, I reduce that term to one of 2 years 8 months’ imprisonment.

20.  For the resisting-the-police-officer charge, Charge 2, I sentence you to 21 days’ imprisonment.  However, I order 7 days of that term to run consecutively to the 1st charge and the remaining term to be concurrent.  So that means you will serve 2 years, 8 months and 7 days.