HKSAR v. QAISER MUHAMMAD

HCCC 54/2022

[2024] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 54 OF 2022

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REASONS FOR SENTENCE

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The Charge

1.  The defendant, Qaiser Muhammad, was convicted after trial of one count of trafficking in a dangerous drug on 31 January 2024. 

2.  The jury, by an unanimous verdict, was satisfied beyond reasonable doubt that the defendant, on 25 November 2020, at Room 29, inside a warehouse situated at Lot TA 470 and 471 of DD 96, at Kwu Tung, Lok Ma Chau, New territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 18,537.7 grammes of a solid containing 18,252.5 grammes of methamphetamine hydrochloride. 

The Facts

3.  On 25 November 2020, two teams of plainclothes police officers from the Kowloon West Region were conducting an anti-dangerous drugs operation at the warehouse location as stated in the charge.  They were instructed to observe the warehouse, to apprehend anyone who was seen coming in and out of the warehouse, and to execute a search warrant.

4.  The members of the Intelligence Unit first arrived at Kwu Tung at 1215 hours.  At 1220 hours, DPC 8909 (PW1)  arrived at the construction site opposite to the warehouse which was about 200 metres away to lie in ambush for observation.  At around 1254 hours, PW1 saw the defendant, wearing a red checked shirt and a pair of blue jeans, opened the green outer gate of the warehouse and went inside the warehouse area.

5.  At 1447 hours, PW1 saw the defendant again but this time wearing a blue tee shirt and a pair of jeans walking out from the warehouse.  After that, PW1 saw the defendant walking in and out of the warehouse and the adjacent small house.  Occasionally, the defendant would take a rest and sat at the staircase next to the warehouse and tap on his phone.

6.  At about 1818 hours, PW1 saw the defendant again leaving the warehouse.  This time, he was wearing the same red checked shirt.  He was seen standing in the green outer gate area as if he was locking up the gate.  He then left the warehouse and walked downslope along the road next to the warehouse.  On seeing this, PW1 reported to his superior officer right away and reminded the other team members to stay alert. 

7.  At this juncture, DPC 20190 (PW2)  of the Regional Special Duty Squad and his team members were waiting outside the construction site near the warehouse.  After receiving the message from PW1, they spotted the defendant and at 1821 hours, PW2 approached the defendant who was a South Asian male and revealed his police identity to him in simple English and asked him why he was there.  Defendant replied that he was going home.  PW2 then requested the defendant to produce his proof of identity and he took out a loss memo from his wallet which showed that his name was Qaiser Muhammad.  PW2 then searched the defendant.

8.  At 1823 hours, PW2 found three mobile phones and seven bunches of keys on the person of the defendant. 

9.  At 1825 hours, PW2 and another team member DPC 19218 took the defendant to the green outer gate of the warehouse area.  From 1826 to 1827 hours, OC Case Detective Inspector Chan showed the search warrant issued by the Eastern Magistracy to the defendant and told him that the police would conduct a search of the warehouse.

10.  At 1828 hours, PW2 asked the defendant which key could open the padlock of the green gate but he did not answer.  PW2 then handed all the keys to the exhibit officer, DPC 11313 (PW3).  PW3 managed to open the padlock with one of the keys and pushed open the green gate.  At 1830 hours, PW3 used another key and successfully opened the orange sliding door of the warehouse.  The other police officers went inside and checked the warehouse but no one was inside.  PW3 then went to the small house next to the warehouse and he opened the metal door of the lower level of the small house with another key from the seven bunches but no one was there. From 1833 hours to 1837 hours, PW3 also tried to open the door of the upper level of the small house with the remaining keys but was not successful.  In the end, the police officers used door-breaking tools to break open the metal door there.  No one was found inside.

11.  PW3 searched the lower level of the small house and found a blue Tee shirt, a pair of grey trousers and a pair of sneakers on the sofa and near the door.  No dangerous drug was found there.

12.  At 1841 hours, PW3 and other police officers began to search the warehouse, which was around 2,000 square feet.

13.  From the photographs taken by the police at the warehouse, one can see that there were piles of crushed stones placed on the floor facing the entrance to the warehouse with some forming a rectangular shape and many of which were broken or crushed opened.  Inside each of the crushed stones, there was a hole with a black plastic bag containing traces of suspected dangerous drug.  There were also twenty metal boxes found next to the piles of stones and inside the metal boxes, there were still some pieces of crushed stones left at the bottom. There was one big black and orange iron hammer which was found next to the iron boxes.  Also, on a wooden table near the stones and metal boxes, PW3 also found some packing paraphernalia such as two electronic scales and some other tools, one pack of red and white labour gloves, one box of unpacked transparent GLAD re-sealable plastic bags and one pack of regular white plastic bags.  Also there was one blue and white iron hammer, one brown iron hammer, one silver and red screwdriver, one silvery knife, one blue ashtray containing one cigarette butt and some further padlocks with keys.

14.  At 1843 hours, PW3 found three bags containing suspected dangerous drugs and informed PW2.  PW2 therefore took the defendant to walk up to PW3 who showed the defendant a black recycle bag with five transparent re-sealable plastic bags containing some white crystalline solids suspected to be dangerous drug inside and a pink recycle bag with four transparent re-sealable plastic bags containing white crystalline solids suspected to be dangerous drug.  The black and pink recycle bags were found underneath the piles of rice bags stored in the warehouse. There was also another white nylon bag containing some pink crystalline solids suspected to be dangerous drugs which was found next to the piles of the rice in the far end of the warehouse.

15.  All the suspected dangerous drugs were seized and later sent for examination.  As a result, only the nine plastic bags containing white crystalline solids (P2–P10)  as contained in the black and pink recycle bags were confirmed to be methamphetamine hydrochloride or what is more commonly known as ‘Ice’.  The total quantities of Ice were exactly as stated in the charge and the total street value at that time is HK$12,253,420.

16.  According to the 1^st Admitted Facts, after DNA analysis, it was confirmed that the DNA found on the filter tip of the cigarette butt (P178)  found inside the astray on the wooden table where other tools and paraphernalia were also found could have originated from the defendant.  The same can be said on the DNA found from the inner surface of the pair of grey trousers and the blue T-shirt seized from the lower level of the small house.

17.  The defendant, as of his right, elected not to give evidence or call any witness to testify on his behalf.

18.  Based on the above circumstantial evidence and the keys seized from the defendant, the prosecution case is that it is clear that at some time, work had been going on in the warehouse and because the DNA of the defendant was found on the cigarette butt found on the wooden table, this evidence, together with the observation evidence of PW1 which had lasted for about 6 hours, put the defendant in close proximity to the work area where stones were obviously broken with the hammers found nearby and the only reasonable inference is that dangerous drugs were then extracted from the stones and weighted in the digital scales before they were packed into the nine re-sealable plastic bags.  Also, given the extraordinary value of the dangerous drugs found in this case which is more than $12 million, it is most unlikely that the defendant, who has the key to the warehouse, did not know the existence of the dangerous drugs there.

Antecedents and the Criminal Records

19.  According to the antecedent statement, the defendant was born in Pakistan.  He is now 35.  He received education up to primary level in Pakistan.  He is a Form 8 holder in Hong Kong.  The defendant was unemployed before he was arrested.

20.  Defendant is reported to be married to a Chinese female in Hong Kong in 2013 but they later divorced in 2020.  Defendant has no children and his parents are living in Pakistan.

21.  Defendant has a total of six criminal records in Hong Kong since 2009 with no similar or drug-related records.

Mitigation

22.  Mr Beel, counsel for the defendant, acknowledged that the case is serious and submitted that given the vast quantity of ‘Ice’ involved, i.e. more than 15,000 grammes, and the relevant sentencing tariff, the starting point in the case is over 30 years’ imprisonment. 

23.  Mr Beel submitted that the role played by the defendant was equivalent to a courier or a storekeeper, which is in the lower end of the criminality of drug trafficking.  He submitted that in such circumstances, the court could simply adopt the tariff as they are without any enhancement. 

24.  Finally, Mr Beel said although the defendant is a Form 8 holder which he accepted that normally is an aggravating factor which calls for an enhancement of the sentence, as the defendant is going to receive a very lengthy sentence anyway, he urged me to exercise discretion and not to further increase the sentence because of his status.

Consideration

25.  In sentencing the defendant, I have taken into consideration the nature of and the quantity of the drugs, the tariffs as set down in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, the sentencing consideration as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the facts of the case and all the matters urged on the defendant’s behalf by Mr Beel . 

26.  The offence of trafficking in a dangerous drug is a serious offence which carries a maximum sentence of life imprisonment and a fine of $5 million.  Those who are convicted of the offence will be severely punished by the court.

27.  In sentencing, I follow the steps of sentencing consideration in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290:

(1)  the first step is to identify the relevant guideline bracket of the drug involved;

(2)  the second step is to identify the role and culpability of the defendant;

(3)  the third step is to identify where in the band the defendant stands. The court may go outside the band depending on the circumstances of the commission of the offence and the role of the defendant;

(4)  the fourth and the fifth step is to identify the aggravating and the mitigating factors; and

(5)  the sixth, and final step is for the judge to stand back and look at the overall sentence to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.

28.  The defendant pleaded not guilty and was convicted after trial.  There will be no discount on account of his plea and remorse. 

29.  For the first step, as said, Mr Beel acknowledged that given the huge quantity of the ‘Ice’ involved in this case, the starting point of the sentence is over 30 years’ imprisonment after applying the tariff. 

30.  According to the Court of Appeal, for a quantity of ‘Ice’ exceeding 600 grammes, the sentencing tariff for trafficking as were prescribed in Abdallah (supra.)  for those quantities in heroin applies (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  If the quantity is between 4,000 grammes and 15,000 grammes, the tariff is between 26 years and 30 years’ imprisonment.  If the quantity exceeds 15,000 grammes, the sentence is at the sentencer’s discretion.

31.  In HKSAR v Chu Ho Wa [2022] 1 HKLRD 359, the Court of appeal held that “while the appropriate bracket for more than 15,0000 grammes of ‘Ice’ was over 30 years imprisonment at the sentencer’s discretion, anything above 30 years’ imprisonment was an extremely long sentence, and it was neither prudent nor possible to apply a mathematical increase where vast quantities were involved.”

32.  In that case, the quantity of ‘ice’ involved was 34,232 grammes and the sentencing judge adopted a starting point of 33 years’ imprisonment.  On appeal, in respect of D1 and D2, the Court of Appeal adopted a starting point at 30 ½ years and 31 years taking into account the limited role and the culpability of these two defendants.  By comparison, in the present case, the quantity of ‘Ice’ involved is 18,252.5 grammes and is obviously   nearly half (53%)  of the 34,232 grammes of ‘Ice’ as in Chu Ho Wa (supra.).  In such circumstances, I am prepared to exercise my discretion to adopt 30 years as the starting point as suggested by the defence.

33.  As to the role of the defendant, by the unanimous verdict of the jury, they must have inferred from the circumstantial evidence and found that whilst inside the warehouse, the defendant has crushed open the stones stored in the metal boxes by using hammers and extracted the ‘Ice’ hidden inside the stones and then weighted the drugs and packed them one by one into the nine resealable transparent plastic bags (P2-P10).  

34.  Given the finding of the jury in this case, apart from storing the dangerous drugs, the defendant was also actively engaged in the extraction and/or packaging of the dangerous drugs for the purpose of distribution and dissemination.  The question is whether it puts him a step up to be an actual trafficker.  In the end, I am satisfied that his acts could still be regarded as part of the storing of the dangerous drugs so I will only apply the starting point without any enhancement on account of his role and culpability.

35.  Secondly, the defendant has six previous conviction records but there is no drug-related record and the nature of those previous records does not call for enhancement in sentence so I am not going to increase the sentence on account of his previous records.

36.  Lastly, as for the aggravating factor, it is well settled that in certain circumstances, the commission of an offence by a foreign national who is the holder of Form 8 recognisance should be treated as an aggravating factor.

37.  Mr Beel however sought to persuade me not to adopt the usual practice to enhance the sentence on this factor because of the totality of the sentence which already has a crushing effect on the defendant.

38.  In HKSAR v Singh Gursevak [2019] HKCA 179, an authority submitted by the defence, the Court of Appeal confirmed the enhancement of 2 years imposed by the sentencing judge on account of the appellant’s status as a Form 8 holder.  The Court of Appeal explained in paragraph 42 the rationale for the status of a Form 8 holder being an aggravating factor:

“ By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed…”

39.  The Court of Appeal further said in paragraph 44:-

“ Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comments that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one. But, as this court pointed out in HKSAR v Lam See Chung Stephen, such a sentence may still be a severe one.” At paragraph 51, the court said:

‘ … It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.’ ”

40.  I therefore decide that despite the lengthy sentence that the defendant will be facing, there is still a need to further enhance his sentence in order to deter the other Form 8 holders to commit criminal offence especially serious criminal offence such as the present.  The appropriate enhancement in view of the seriousness of the present case should be 18 month’s imprisonment but in the end, I will still exercise my discretion to reduce the enhancement to 12 months only because of the totality of the sentence.

41.  In total, the starting point of sentence after the enhancement is therefore 31 years’ imprisonment.

42.  Mr Beel was unable to put forward any mitigating factors on behalf of the defendant during his submission.  Although he did not explain in mitigation why the defendant came to be involved in drug-trafficking, I have no doubt he was only tempted to commit the offence for a monetary reward but the court can never accept economic reason for committing crime and in the sentencing of serious offences like the present, the Court of Appeal has repeatedly emphasised that family circumstances virtually play no part in mitigation.

43.  Finally, after stepping back and looking at the overall sentence, in my judgment, the sentence after the necessary enhancements is still a fair, just and balanced sentence in all the circumstances of the offence and also the defendant. Just because a sentence is severe does not mean that it is not just and balanced.

Order

44.  The defendant is sentenced to 31 years’ imprisonment.