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HCCC 338/2018
[2019] HKCFI 658
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 338 OF 2018
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| Before: |
Hon D’Almada Remedios J |
| Date: |
1 February 2019 at 5.18 pm |
| Present: |
Ms Emily Cheung, on fiat, for HKSAR |
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Mr Frederic Whitehouse, instructed by Yu Hung & Co,
assigned by DLA, for the accused |
| Offence: |
(1) & (2) Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
Defendant, you have been found guilty after trial by the jury of two charges of trafficking in dangerous drugs.
The 1st charge of trafficking involves 1.02 grammes of a solid containing 0.68 grammes of cocaine, the 2nd charge to trafficking in 334 grammes of a solid containing 228 grammes of cocaine.
You were found to be trafficking in these two charges on 13 October 2017 at No. 315 Nathan Road, Yau Ma Tei, Kowloon. The location of the 1st charge was at the ground floor of that building and the 2nd charge was in Room 2, Front Block, the 5th Floor of that building which was your residence.
On the evidence, very briefly, the police were conducting observations at No. 315 Nathan Road. You were seen to be leaving the building at about 10.40 pm and were stopped and searched. In your pocket was found one plastic bag containing the drugs as stated in Charge 1. In your other pocket was found a wad of cash in the sum of $16,140.
You were taken back up to your home and in your flat and the bedroom where there was only one wardrobe, the drugs in Charge 2 were found. They were found together with cash of $42,250, electronic scales and 21 resealable empty plastic bags.
It is clear from the jury’s finding that you were leaving your residence where you had stored drugs for the purposes of supplying those drugs in your pocket to another person. It is clear that the drugs in the wardrobe together with the large amount of cash, with the plastic bags and the scales were for the supply to others.
At the time of this offence, you were aged 24. You are now 26 years old. You came to Hong Kong from Pakistan illegally. You are a torture claimant. You do, however, have a clear record in Hong Kong. Mr Whitehouse, your counsel, has not put forward any mitigation on your behalf save for the fact that you are a young man and are of clear record.
As your counsel has indicated in his mitigation, the offence of trafficking in dangerous drugs is a very serious offence. The Court of Appeal have laid down tariffs in sentencing for trafficking in different kinds of dangerous drugs. You were found to be trafficking in cocaine. The guideline case for trafficking in cocaine is R v Lau Tak Ming. The Court of Appeal laid down guidelines if a defendant is convicted after trial for trafficking in quantities of between 200 and 400 grammes of cocaine, the sentence should be between 12 and 15 years’ imprisonment.
The Court of Appeal has also laid down guidelines and principles for torture claimants like yourself who are convicted of serious criminal offences such as trafficking in dangerous drugs that their sentence should be enhanced because it is a serious aggravating factor to commit a serious offence in Hong Kong as a torture claimant.
Defendant, that is because you have been permitted to remain in Hong Kong at liberty whilst your claim is pending. You have committed a very serious offence and have abused the hospitality of Hong Kong. The commission of this very serious offence of trafficking has a serious detrimental effect on the community in Hong Kong and tarnishes Hong Kong’s reputation for order and security. In those circumstances, the Court of Appeal has said for torture claimants committing these serious offences, there should be an enhancement from the starting point.
Defendant, you are well aware of the guidelines and there is nothing in your mitigation that is said on your behalf that can be put forward as mitigation.
Defendant, for Charge 1, that is trafficking in 0.68 grammes of cocaine, you shall be sentenced to 2 years’ imprisonment. Defendant, for Charge 2, 228 grammes of cocaine, you shall be sentenced to 12 years and 3 months as a starting point for that charge. However, as I said, you are a torture claimant and that sentence starting point should be enhanced.
I take into account the quantity of drugs to which you were trafficking in, the 2nd charge, and in following the case of HKSAR v Mahabul Alam Khan, I enhance that starting point by 15 months’ imprisonment. Therefore, for Charge 2, defendant, you are sentenced to 13 years and 6 months’ imprisonment. I order Charge 1 to run concurrent to Charge 2. That means that you shall serve 13 years 6 months’ imprisonment.
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