HKSAR v. KHAN IBRAR AND OTHERS

DCCC 1004/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1004 OF 2012

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Reasons for Sentence

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1.  There are two defendants before me, D1, Khan Ibrar and D2, Ali Muhammad Fareed. D1 and D2 face the following charges:-

i. 1^st charge (against D1 only): claiming to be a member of a triad society;

ii. 2^nd charge (against D1 and D2): trafficking in a dangerous drug;

iii. 3^rd charge (against D1 only): trafficking in a dangerous drug;

iv. 4^th charge (against D2 only): trafficking in a dangerous drug;

v. 5^th charge (against D2 only): trafficking in a dangerous drug;

vi. 6^th charge (against D2 and D3): trafficking in a dangerous drug.

2.  D3 was absent on the first day of the trial and a warrant of arrest was issued against him.  D1 pleaded not guilty to the 1st charge but guilty to the 2nd and the 3rd charge. D2 pleaded guilty to the 4th, 5th and the 6th charge. 

3.  The 2^nd charge took place on 6 December 2011, it concerned 23.50 grammes of a powder containing 7.87 grammes of ketamine.  The 3^rd charge took place on 26 December 2011, it concerned 39.35 grammes of a powder containing 14.57 grammes of ketamine.  The 4th charge took place on 14 January 2012, it concerned 6.60 grammes of cannabis resin.  The 5th charge took place on 18 February 2012 and it involved 6.48 grammes of cannabis resin.  The 6th charge took place on 25 March 2012 and it involved 5.55 grammes of cannabis resin.

4.  D1 and D2 admitted the facts pertaining to those charges.  Upon conviction, at the request of the prosecution I ordered that the 1^st charge be kept on court’s file and not to proceed with without this court’s leave or the leave from the Court of Appeal. 

5.  The facts admitted by D1 and D2 reveal that an undercover operation was mounted by the police since mid-2011.  PC3750 was deployed as an undercover operative and disguised himself as a newly moved in resident in Yuen Long.  He infiltrated into the local community and acquainted with a number of local and non-ethnic Chinese characters who involved themselves in various dangerous drugs transactions and triad‑related activities.  The operation turned overt on 8 July 2012. 

6.  On 14 August 2011, the undercover police agent met D1 at Si Ma Indonesia Products at No. 20 Tai Pei Tau Path, Yuen Long.  D1 asked the undercover police agent if he knew any supplier of coke and said “I have coke, K chai and grass, call me if your friends want any”.

2^nd charge

7.  On 27 November 2012, the undercover police agent met D1 at the shop and the latter offered to sell ketamine to the undercover police agent.  D1 called the undercover police agent on 6 December 2011 and they agreed to meet up near Yuen Long cinema at No. 8 Yuen Long Pau Cheung Square.  D1 arrived on a private vehicle together with D2 and another male.  D1 and D2 alighted from the vehicle.  The unknown male person then passed a transparent plastic bag to D1 who then gave it to the undercover police agent.  The plastic bag contained two transparent plastic bags of ketamine, the subject matter of charge 2.  D2 then said to the undercover police agent, “1,000, next time buying K find me”.  The undercover police agent then handed $1,000 marked money to D1. 

8.  The aforementioned two plastic bags of ketamine were subsequently confirmed to contain 23.50 grammes of a powder containing 7.87 grammes of ketamine.

3^rd charge

9.  On 26 December 2011, the undercover police agent met D1 in Yuen Long.  D1 asked the undercover police agent if he wanted ketamine and offered to sell ketamine to him at $2,500.  They met up later near the junction of Yuen Long Tung Tai Street and Yuen Long Tai Hang Street.  The undercover police agent gave $2,500 marked money to D1 and D1 gave him four plastic bags of ketamine.

10.  The four plastic bags of ketamine were subsequently confirmed to contain 39.35 grammes of powder containing 14.57 grammes of ketamine.

4^th charge

11.  On 14 January 2012, the undercover police agent met D2 at Si Ma.  D2 asked the undercover police agent if he was interested to smoke cannabis and told him that it costs HK$600 per one packet.  D2 called the undercover police agent later and they met up at a basketball court at Nam Pin Wai, Yuen Long.  D2 arrived with two males and asked for money from the undercover police agent.  The undercover police agent gave HK$600 marked money to D2 and the latter gave him one packet of cannabis resin. 

12.  That packet of cannabis resin was subsequently confirmed to be 6.60 grammes of cannabis resin.

5^th charge

13.  On 18 February 2012, D2 called the undercover police agent and asked if he was interested to buy some cannabis.  The two later agreed to meet up at the basketball court at Nam Pin Wai where the undercover police agent gave HK$600 marked money to D2 and the latter gave him a packet of cannabis resin.

14.  That packet of cannabis resin was subsequently confirmed to contain 6.48 grammes of cannabis resin. 

6^th charge

15.  On 25 March 2012, D2 called the undercover police agent and asked if the latter wanted to buy some cannabis.  The two agreed to meet up Yuen Long cinema later that day.  D2 and another person turned up at the cinema and met the undercover police agent.  D2 asked for money from the undercover police agent whereas the other person took out a plastic packet of cannabis resin from his front trousers pocket and gave the same to the undercover police agent.  D2 received $600 marked money from the undercover police agent and the other person said “The stuff are okay”.

16.  That plastic packet of cannabis resin was subsequently confirmed to contain 5.55 grammes of cannabis resin.

17.  D1 and D2 were arrested by the police on the 19th and 13 July 2012 respectively. 

18.  D1 was convicted of one count of going equipped for stealing in 1996, he was put under Probation Order for 12 months.  He was convicted of doing an act tending and intending to pervert the course of public justice on 2 April 2012 and he was sentenced to 4 years’ imprisonment.

19.  D2 has a clear record in Hong Kong.

20.  I am grateful to Mr Richmond who appears for D1.  He has prepared and submitted a succinct and comprehensive written mitigation on behalf of the 1st defendant.  Mr Richmond submits in mitigation that the 1st defendant is now 31 years old.  He was born in Pakistan and migrated to Hong Kong in 1993 for family reunion.  He is a Hong Kong Permanent ID card holder.  The 1st defendant received only primary education in Pakistan.  He speaks colloquial Chinese but he cannot read or write any other language other than his native Urdu.  A married man, his wife is a housewife and he has four children, two boys aged 14 and 12 and two daughters, one aged 5 years and the youngest is just 6 months.  D1 joined the workforce as a teenager.  He has worked continuously as a construction site worker and for the past five years as a garage mechanic.  He was the sole breadwinner to his family.

21.  Mr Richmond tells me the 1st defendant was unemployed at the time of the offences.  He suffered injuries in a road traffic accident and had been on sick leave for five to six months.  The family currently subsist on CCSA of about $7,000 per month.  Mr Richmond submits that the defendant pleaded guilty to the charges and has accepted responsibility for his conduct.  He has no previous drugs-related convictions. 

22.  Mr Richmond draws my attention to the authority Secretary for Justice v Hii Siew Cheng Chan. In relation to charge 2, he submits that the starting point should be 3.5 years’ imprisonment and for charge 3, a starting point of 4 years and 3 months is appropriate.  He asked me to apply the totality principle and he submits that a starting point of 5 years’ imprisonment is appropriate to reflect the gravity of charge 2 and charge 3.

23.  Mr Chong who appears for D2 submits in mitigation that D2 is now 23 years old, he was born in Pakistan and had received only primary education.  He came to Hong Kong in 2008 from China.  He did not have any travel document with him.  He submitted his torture claim to the Hong Kong Government and his application is still in process.  Because of his status, D2 could not work in Hong Kong, he could only hang out with his friends in some convenience stores.  He receives support from the International Social Services.  The organisation provides D2 with some basic needs, some money and food for the support of his living.

24.  D2 has a girlfriend in Hong Kong.  His parents and his four siblings are all in Pakistan.  D2 has a clear record in Hong Kong, he is remorseful for what he had done.  As an indication of his remorse, he pleaded guilty to all four charges.  Mr Chong tells me in mitigation that D2’s father suffers from heart disease and his mother is also indisposed because of D2’s incarceration.

25.  For charge 2, Mr Chong submits that according to the tariff as set down in Hii Siew Cheng, a starting point of 3½ years’ imprisonment is appropriate.  For charge 4, charge 5 and charge 6, the three charges involve a total of 18.60 grammes of cannabis resin.  He draws my attention to the case AG v Tuen Shui Ming [1995] 2 HKCLR 129.  He submits a starting point of 5 months’ imprisonment is appropriate for these three charges.  Mr Chong asks me to bear in mind the totality principle and be as lenient as possible.

26.  In sentencing D1 and D2, I have borne in mind the facts of this case, the nature of the dangerous drugs, the mitigations urged on behalf of D1 and D2 by their counsel.  For charge 2, I agree with Mr Richmond and Mr Chong that a starting point of 3½ years’ imprisonment is appropriate applying the tariffs as set down in Hii Siew Cheng.  D1 and D2 pleaded guilty to the charge and each is entitled to one-third reduction. 

27.  For charge 3, I agree with Mr Richmond that a starting point of 4 years and 3 months’ imprisonment is appropriate.  D1 is entitled to one-third reduction for his guilty plea and that would bring his sentence down to 34 months.

28.  For charge 4, charge 5 and charge 6, a short sentence of imprisonment is appropriate and I take 3 months’ imprisonment as the starting point for charge 4, charge 5 and charge 6.  D2 is entitled to one-third reduction for his clear record and his guilty plea.  That would bring the sentences for charge 4, 5 and 6 to 2 months’ imprisonment.  Apart from the guilty pleas of the defendants, I can see no other mitigating factors which can further reduce the sentences from the starting points. 

29.  For the reasons given, for charge 2 I sentence D1 and D2 each to 28 months’ imprisonment. 

30.  For charge 3, I sentence D1 to 34 months’ imprisonment.

31.  Charge 4, I sentence D2 to 2 months’ imprisonment.

32.  Charge 5, I sentence D2 to 2 months’ imprisonment.

33.  Charge 6, I sentence D2 to 2 months’ imprisonment.

34.  I bear in mind the totality principle.  In the case of D1, in my judgment a total sentence of 40 months’ imprisonment will sufficiently reflect the overall criminality for charge 2 and charge 3.  To achieve that end, I order 6 months of the sentence of charge 1 to run consecutively to the sentence for charge 3, 6 months of charge 2 to run consecutively to the sentence for charge 3.  In total, D1 has to serve a total sentence of 40 months’ imprisonment for charge 2 and charge 3.

35.  D1 is now serving 40 months’ imprisonment for DCCC 1081 of 2011.  Again I have taken into account the totality principle.  I order that 30 months of the present sentence should run consecutively to the imprisonment that D1 is serving for DCCC 1081 of 2011.

36.  In the case of D2, again I have taken into account the totality principle.  In my judgment, a total sentence of 30 months’ imprisonment will sufficiently reflect the overall totality for D2’s involvement in charge 2, 4, 5 and 6.  To achieve that end, I order the sentences for charge 4, 5 and 6 shall run concurrently with each other but consecutively to the sentence for charge 2.  D2 has to serve a total term of 30 months’ imprisonment.