HKSAR v. MOHAMMED SAIF AND ANOTHER

HCCC 84/2018

[2018] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2018

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

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COURT:

Mohammed Saif, on 5 March 2018, you pleaded guilty before the Eastern Magistracy to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you accepted that you sought to cross into Hong Kong through Lo Wu on 25 January 2017, with 837 grammes of cocaine strapped to your body.

Mohammed Shahnawaz Ali, you also pleaded guilty before the Eastern Magistracy on 5 March to one count of trafficking in dangerous drugs and you had 847 grammes of cocaine strapped to your body when you also sought to cross into Hong Kong at Lo Wu on 25 January of last year. Upon arrest and caution, you both admitted you had brought the cocaine into Hong Kong for a limited reward.

The estimated street value of what you each brought into Hong Kong was HK$905,276.

You are 30 and 31 years of age, Indian nationals and businessmen who travelled to Hong Kong on a regular basis. By reason of your pleas, you knew what it was you were doing. You cannot be treated differently from others who come before the courts, otherwise, they can properly say that they have been treated unfairly. There has to be parity of sentence and only the most exceptional circumstances will provide any mitigation for the international trafficking in dangerous drugs.

The guideline case for trafficking in between 600 and 1200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437, and the range of sentence is between 20 to 23 years. For 834 and 847 grammes of cocaine, the starting point after trial is, therefore, 21 years and 3 months. There is also the aggravating feature that you had imported drugs into Hong Kong. According to the Court of Appeal in that case, and in CACC 85/2014, HKSAR v Chung Ping Kun, for amounts between 500 grammes to 1 kilogramme, the enhancement should be between 1 to 2 years. For that aggravating feature, I will enhance both your sentences by 1 year and 9 months, making a total of 23 years for each of you.

Both of you have been involved in the programme operated by Father Wotherspoon, which I commend. I am not going to distinguish between you in that respect, but I am prepared to reduce your sentences by 6 months for that assistance to 22 years and 6 months.

Mr Saif, you saw the error of your ways very early in these proceedings and were prepared to plead guilty throughout. Ms Crebbin has detailed to the court the manner in which you sought to assist the authorities from the beginning and the considerable efforts you have gone to in order to have the limited information available to you acted upon by not just this jurisdiction, but also the Thai and mainland Chinese drug enforcement agencies. You are an intelligent, well-educated man, who knew full well what you were doing, but it is clear that you have now realised the harm you would have done to others by trafficking in drugs and the obvious harm you have done to yourself and your family by doing so.

You are clearly remorseful. Ms Crebbin asks that the court enhance the one-third discount which you are entitled to as a result of your early indication of plea. On your behalf, counsel maintains that your attitude from the outset indicated a genuine desire to assist and that public policy requires not just that you should be punished for your crime, but also that those like you should be encouraged to bring others to justice.

Although, little came of the factual assistance you gave in respect of other participants and there is no official confirmation of arrests elsewhere, I take the view, suggested by Ms Crebbin, that the 2nd defendant may very well have finally realised that he had little choice but to plead guilty in March 2018. In part, that may have been because he faced the threat of a far greater ultimate sentence by being charged with two offences, but also it could very well have been that he foresaw that you would give evidence against him. He would not have known the views of the prosecution on that course. I intend to give you credit for that today and if there comes a time when arrests are made as a result of the other assistance which you have sought to give, then I suggest that you seek a further hearing in order to obtain a greater discount on the sentence which I pass today.

Mr Shahnawaz, I can read between the lines and I take the view that you decided to enter a plea much later in the day and I suspect it was only because of the considerable efforts on the part of Mr Polson on your behalf that you are not facing two charges today and a far greater sentence. You sought to shift the blame at the outset and lied to the police about your role, which was clearly greater than you wished them to believe. Nevertheless, I am not going to differentiate between your roles because I do not have sufficient credible information before me. But I am going to differentiate between your assistance.

You only sought to assist when all was lost. You only sought to indicate a plea when you believed that you were going to face two charges and when you knew that the 1st defendant was prepared to give evidence against you. The factual information you provided in respect of other participants was more limited than that given by the 1st defendant and of no practical assistance.

I do not believe that you are truly remorseful. I believe you are motivated only by the opportunity to reduce your sentence. If you had given useful assistance at an early stage, I would have given you credit for that assistance and for your desire to bring others to justice. As it is, I do not believe a further discount beyond the one-third that you are entitled to for your plea at committal is justified.

Mohammed Saif, you will go to prison for 12 years and 10 months on Count 1.

Mohammed Shahnawaz Ali, you will go to prison for 15 years on Count 2.