HKSAR v. KHAN ASIF ALI

HCCC 236/2017

[2018] HKCFI 2728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 236 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 24 July 2017, you pleaded guilty before a magistrate at the Eastern Magistracy, to a charge of trafficking in dangerous drugs. Having admitted the Summary of Facts in support of the charge on the same date, you were committed to the Court of First Instance for sentence.

The sentence hearing on 18 October 2017 was however, adjourned to 2 February 2018. On the adjourned hearing of 2 February 2018, eight months after you entered your plea of guilty, you applied to withdraw your plea of guilty to one of not guilty.

The inquiry to consider whether to refuse or allow your application was held last month, on 26 and 27 September. I handed down my judgment on 19 October, refusing your application to reverse your plea of guilty to not guilty.

You therefore have pleaded guilty to an offence committed on 4 November 2016 at Lo Wu Control Point, New Territories in Hong Kong, whereby you have admitted that you unlawfully trafficked in 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine.

On 4 November, just before 5 pm, you were stopped at the end of the Green Channel of the Lo Wu Control Point by the Customs and Excise, when you were returning to Hong Kong from the mainland. Upon search, seven packets containing the drugs were found on your person, two in your vest pockets and the remainder in your trousers pockets.

You were arrested and cautioned and claimed that you did not know what the packets found were. You added that the packets had been given to you earlier by an unknown Indian male at a KFC restaurant in Shenzhen. You were instructed to deliver the packets to Fanling. Your reward for this job would be $6,000.

The Immigration movement record showed that you departed Hong Kong that day at 4.06 pm. You therefore returned within the hour.

The estimated street value of the dangerous drugs seized was $2,194,308.20.

Upon your plea of guilty, admission of the facts, you admitted and accepted that you knowingly imported the dangerous drugs seized into Hong Kong. You are now 38 years of age and are a holder of a Hong Kong ID card.

On the same date that you committed this offence, you had come into Hong Kong with some whiskey, and as a result of that, had committed two offences, to which you were fined $1,800 in total. Those offences were for unlawful possession of dutiful goods and failing to declare to a member of Customs and Excise.

Mr McNamara, your counsel, has mitigated on the basis that you have pleaded guilty, and has accepted that you may have wasted some time and therefore the full one‑third discount should not be applicable in this case. That is because, of course, you applied to reverse your plea of guilty and he submits that a 25 per cent discount should be appropriate.

On the other hand, you have written a letter to me dated 21 October, seeking for a full one-third discount and more, because of your efforts you have made in assisting Customs and also Father John Wotherspoon. You have also another piece of paper, writing to Father John giving him the name of the person and asking him to post this on the web. Father Wotherspoon has also written me a letter dated 24 December 2017, to which he said that you passed him information which he has put on the website, stating there is an Indian drug lord operating in Shenzhen.

The original sentence hearing of 18 October 2017, that is your first sentence hearing at the Court of First Instance was adjourned, so as to enable you to give non‑prejudicial statements. Mr McNamara has submitted to me a letter, dated 26 January 2018, from the Department of Justice stating that the defendant gave three NPSs, whereby the defendant provided information of a Pakistani male, his ID card, mobile telephone numbers and his last known address, whom he alleged was involved in the seized dangerous drugs.

The Customs had conducted investigations, however there were no results. Ms Grace Chan, the Senior Public Prosecutor, has however, informed me today that the Pakistani male has been subsequently located and he stated he had no knowledge of the case. And as a result, no further action has been taken and the prosecution will not be proceeding against this person on the bare allegation of the defendant and the case is closed. In the circumstances, the information given by the defendant is of no value to the authorities.

In regard to the defendant’s assistance to Father Wotherspoon, I do not consider that assistance to be such as to warrant a further discount to his sentence, and I refer to the recent Court of Appeal decision handed down recently, Kilima Abubakar Abbas, CACC 143/2016.

In the circumstances, what is for my consideration now is to what amount of discount should the defendant obtain.

Ms Chan for the prosecution, in her written submissions, submits that the discount entitled by the defendant in the spirit of Ngo Van Nam, should be less than 25 per cent. Mr McNamara submits it should be 25 per cent.

The Court of Appeal in HKSAR v Abdallah Anwar Abbas, CACC 304/2008, considered the approach to the loss of discount, and particularly considered the case of HKSAR v Thattephin Tanyamon at paragraph 13 of the judgment.

In Thattephin Tanyamon, the Court of Appeal agreed with the judge’s decision to reduce the appellant’s discount because the appellant had actually wasted time and manpower to process her application for reversal of plea. In that case, the court upheld a discount of one‑fourth.

In Abdallah, the Court of Appeal at paragraph 17, held that in short, therefore the time factor is not the only point at issue. It stated at paragraph 17:

“Similarly, where a defendant has pleaded guilty but then seeks to persuade the court that it ought to allow the plea to be reversed and the grounds put forward for allowing a reversal of plea are rejected, the time factor involved in hearing the application is only one of the circumstances to be considered.”

In regard to the time factor here, the defendant has had, since 18 October, five separate hearings before the court. On 18 October, the hearing was adjourned for the NPS’s to be taken. On 2 February, the application for the reversal of plea was made. On 30 May, a directions hearing was made for the reversal of plea application.

On 26 and 27 September, the reversal of plea hearing was heard and on 19 October, the court handed down judgment for the reversal of plea. And through no fault of Mr McNamara at all, he was not briefed by the Director of Legal Aid, to represent the defendant for sentence and sentence was adjourned to today.

In this case, not only has there been wasted time, but there has been much wasted manpower to process the defendant’s application for his reversal of plea. Mr John Massie who originally representing him, filed an affidavit. The interpreter who was with Mr Massie, Mr Sajid Khalil, had to file an affirmation. Mr Mohnani Dheeraj, solicitor, and Mr Richard Donald, counsel, also had to file an affirmation. Mr Massie and Mr Khalil gave evidence at the trial.

The defendant has, from the date of his plea of guilty till today, had more than five legal representatives representing him. This includes Mr Massie, Mr Donald, Mr Mohnani, Ms Manek, Ms Mohamed and now, Mr McNamara.

This, in my view, is an extreme waste of time and manpower and expense. The expense, of course, being caused to the taxpayer as all those lawyers were instructed by the Director of Legal Aid. In those circumstances, I am of the view that a discount of less than 25 per cent is appropriate and a discount of 23 per cent I shall apply.

Defendant, had you been convicted after trial, an appropriate starting point for the amount of drugs that you were trafficking in, that is 1,672.6 grammes of cocaine, would be one of 23 years and 6 months’ imprisonment.

You imported these drugs into Hong Kong from mainland and therefore there is an international element and enhancement to your sentence because it is an aggravating factor. I enhance your sentence by 2 years’ imprisonment. Therefore, your sentencing point is 25 years and 6 months’ imprisonment, had you been convicted after trial. You pleaded guilty to the charge.

As I mentioned in my reasons earlier, you do not deserve the full one-third discount, but I shall apply a 23 per cent discount, and you shall be sentenced to 19 years and 6 months’ imprisonment.