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DCCC 449/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 449 OF 2014
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HKSAR |
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CHANDA |
(D1) |
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SEKH
MEAHBOOB |
(D2) |
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| Before: |
HH Judge Stanley Chan |
| Present: |
Ms Peggy Leung, SPP of the Department of Justice, for HKSAR |
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Mr Philip William Swainston, of Tanner De Witt, assigned by the Director of Legal Aid, for both defendants |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. Both defendants pleaded guilty to one count of trafficking in a dangerous drug, namely, 6.59 kilogrammes of cannabis resin. They are convicted accordingly.
Summary of Facts
2. At about 1:10 pm on 31 December 2013, D1 was seen pushing a trolley towards Customs Arrival Hall of the Hong Kong International Airport. A luggage, a rucksack, a carton box and a handbag were found on the trolley. Customs officer told D1 to go to a counter for search.
3. Upon enquiry, D1 told the customs officers that the handbag and the carton box belonged to him whereas the rucksack and the luggage to D2. A baggage tag in D1’s name was found on the carton box while a tag in D2’s name was found on the luggage. D1 told the customs officers that D2 was at the immigration counter awaiting clearance.
4. The customs officers found cash in the amount of several thousand dollars in various currencies (it was revealed that the money comprised of Indian Rupees $2,330 odd, US$2,000 odd and HK$1,142) and D2’s baggage claim tag on D1. Inside the carton box, there were packets of flour, clothes, cooking utensils and food.
5. D2 was located in the airport. Upon enquiry, D2 said the rucksack belonged to him but denied the luggage with his name tag was his. The luggage was opened in D2’s presence. Customs officers found packets of potato chips and that of flour. The packets of flour were of the same brand and packaging as those found in D1’s carton box. Inside the bottom compartment of the luggage, 8 packets containing a total of 6.59 kilogrammes of cannabis resin were found.
6. Inside D2’s rucksack, a shoulder bag containing the boarding passes and itinerary of various trips issued to both D1 and D2 was located. Upon search on D2, customs officers also found some Rupees and a passport in D1’s name, which was expired.
7. In the video-recorded interview, D1 admitted that he was given the ticket to come to Hong Kong and he knew D2 for many years.
8. D2 in the video-recorded interview admitted the following:
(1) D2 knew D1 since childhood. He was asked by D1 to bring some things to Hong Kong.
(2) D1 promised D2 a job opportunity on the next occasion if D2 could bring some things to Hong Kong for him.
(3) D1 told him that he could return home in a day’s time.
(4) D1 bought him air tickets to Hong Kong and also arranged the visa.
(5) D1 paid all the expenses of the trip to Hong Kong.
(6) D2 helped D1 taking the luggage to the airport.
(7) They travelled together and it was D1 who checked in the luggage for him in India.
9. The records of the Thai Airway showed that:
(1) D1 and D2 checked in the same flight from Kolkata, India, to Bangkok at 4:48 pm and 4:46 pm on 30 December 2013 respectively.
(2) The luggage was checked in under D2’s name.
(3) D1 purchased an air ticket to Bangkok from Hong Kong which was scheduled to depart from Hong Kong at 6:55 pm on 1 January 2014 and another ticket for the flight departing from Bangkok at 9:55 pm on 1 January to Kolkata.
(4) D2 purchased an air ticket to go to Bangkok from Hong Kong which was scheduled to depart from Hong Kong at 6:55 pm on 31 December 2013 and another ticket for the flight departing from Bangkok at 9:55 pm on 31 December to Kolkata.
Mitigation
10. D1 is now aged 36 years old and was married with a 5-year-old daughter. He had a clear record in Hong Kong. D1 claimed that he was a taxi driver in India earning about Indian Rupees $10,000. He was up to primary 5 education level. He came to Hong Kong as a tourist. D1 had previously been to Hong Kong and travelled with his elder brother in doing trading.
11. As regards D2, he is at the age of 31 and was married with a 3-year-old son. D2’s education level was up to primary 5. He claimed that he was a market stall trader earning about Indian Rupees $7,000 per month. D2 had a clear record in Hong Kong.
12. It was submitted that D1 and D2 have been friends for a long time. D2 fell into debt and was asked by the money lender to bring the dangerous drugs to Hong Kong. It was said D1 assisted D2 who bought the air tickets. It was said D2 would get about Indian Rupees $50,000 as a reward.
13. The defence accepted that the sentencing guideline for cannabis resin promulgated in Attorney General v Tuen Shui Ming and another [1995] 2 HKC 798, still applies.
Sentence
14. Both defendants came to Hong Kong as a visitor. They had a clear record in Hong Kong. They chose to travel from Kolkata to Bangkok and then to Hong Kong. They came to Hong Kong on the very last day of the year and intended to return either on the same day (for D2) or on 1 January (for D1). The dangerous drug was hidden in a secret compartment of the luggage with many small packets of potato chips and flour as a kind of camouflage (see photo 5 and 6 of the photo album).
15. From the facts of the case, it is obvious that D2 was being made use of by the syndicate and act as a courier. D2 in his cautioned interview said D1 paid for all the expenses to Hong Kong and D2 would be offered job opportunity by D1.
16. In mitigation today, it was said that it was D2 who got the air tickets from the syndicate and that he would be remunerated upon return to India. D2 said D1 helped him without any reward, just out of friendship.
17. Both defendants brought the dangerous drugs to Hong Kong which indicated that there was an international element. The total quantity of the dangerous drug is 6.59 kilogrammes of cannabis resin. In accordance with the sentencing guideline, trafficking in cannabis resin for a quantity of over 6 kilogrammes will attract a sentence of 36 to 48 months. Tariffs are not a straightjacket. In my view, both defendants are wise enough to plead to the charge, otherwise they will certainly face a lengthy sentence upon conviction after trial. Their plea would enable them to have a one-third discount in sentence.
18. Both defendants acted in concert and have to bear the same liability based on the principle of joint enterprise. That is so, even though there was no evidence to suggest that D1 would get any reward for this activity. D1 did inform the customs officers of the presence of D2 in the airport leading to the timely arrest of D2.
19. Taking all factors into consideration, I would adopt 39 months as the starting point for both defendants. I would allow a full one-third discount to both defendants which leads to the sentence of 26 months.
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(Stanley Chan)
District Judge
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