HKSAR v. SK WASIM

DCCC 860/2018

[2019] HKDC 311

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 860 OF 2018

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REASONS FOR SENTENCE

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1.  This is a case of drug trafficking. A consignment of goods (418 packets of Indian snack in 15 cartons) was shipped to Hong Kong from India on 3 May 2018. 11.7 kg of cannabis resin, which were the drugs seized in the present case, were in fact concealed in the packets of snack.

2.  On 7 May 2018, the goods were delivered to its destination, a flat on 7th floor in Chungking Mansion, Tsim Sha Tsui, the police discovered that the defendant, an Indian Form 8 holder, was in the process of receiving the goods inside the flat, while another Indian man, Tsa, stood near the door looking at the cartons on the floor.

3.  An officer stopped the defendant, who said that someone paid him $200 to deliver the boxes, but when asked who that person was, the defendant replied that he did not know the person.

4.  The police seized the 15 cartons and inside the packets, they found 48 plastic bags containing the drugs in this case. The street value of the drugs was estimated to be about 1.38 million.

5.  The defendant, a divorcee aged 37 with 2 daughters, has a hitherto clean record. He now is a torture claimant receiving allowances $3,200 a month.

6.  The court heard that the defendant’s mother is now hospitalised in India because of heart problem and she has been suffering from heart disease and diabetes.

7.  Today, counsel told the court that the defendant no longer relied on the assertion stated in the written mitigation that “he received no financial reward for moving the subject dangerous drugs”, in fact he had been paid $200 for so doing. The defendant also confirmed that he knew about the drug contents of the boxes at the time.  

8.  For trafficking over 9 kg of cannabis resin, the sentencing guidelines suggest a term over 4 years. Given the amount the defendant admitted trafficking, i.e. 11.7 kg, I take 4½ years as starting point.  

9.  If there is an international element involved in drug trafficking, it is a ground for enhancing the sentence. In the instant case, the drugs were sent from India and arrived at its destination (Chung King Mansion); no sooner had the drugs arrived than the defendant was there to deal with it – such scenario clearly involves an international element, and I would on this ground increase the sentence by 3 months.    

10.  The defendant, being a Form 8 holder, has committed a very serious offence while awaiting his claim for refugee status to be determined, which clearly would affect the community at large and tarnish the reputation of Hong Kong as an orderly and safe city.

11.  The prosecution has referred the court to a recent authority Ali Saif CACC 309/2017, in which the Court of Appeal said the following in no uncertain terms on the question of enhancement for Form 8 holders committing serious offences such as drug trafficking:-

“However, we should say that we would not expect any enhancement for this factor to be less than six months imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.”

In view of this, I would add 6 months to reflect this factor.

12.  Taking into account what is said above, the starting point is increased to 5 years 3 months. Insofar as mitigation is concerned, apart from his guilty plea, there isn’t anything substantial. His plea is timely, so the starting point is reduced to 42 months.

13.  There being no other reasons for further reduction in sentence, the defendant is sentenced to 42 months’ imprisonment.