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 for D3

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1.  Defendant, you have pleaded guilty to two charges before this court. One of the charges is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The other charge is one of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance. Those charges were respectively Charges 6 and 7 on the indictment. In Charge 6, you were jointly charged with a co-accused, D2.

2.  The facts are as follows:- this was an undercover operation mounted by the police since 2011.  A police officer was deployed as an undercover operative and disguised himself as a newly moved-in resident in Yuen Long.  He infiltrated himself into the local community and became acquainted with a number of local and non-ethnic Chinese characters who were involved in various dangerous drugs transactions.  The operation turned overt on 8 July 2012.

3.  On 25 March 2012, your co-accused, D2, called the officer and asked him if he wanted to buy some cannabis.  Later that day they met up at Yuen Long cinema in Yuen Long Pau Cheung Square and there your co-accused, D2, asked for money from the officer and you then took out a plastic bag of cannabis resin from your trousers pocket.  The officer gave D2 $600 and you then said to him, “The stuff are okay.”

4.  The cannabis resin was confirmed to be am amount of 5.55 grammes.

5.  On 8 July 2012, you were arrested by the police in Yuen Long and the officer positively identified you as the one whom sold drugs to him. 

6.  In respect of the charge of failing to surrender to custody, your trial date was set down on 4 February 2013.  However, you failed to turn up and a warrant was issued for your arrest.  On 7 February 2013 you turned up at the Yuen Long Police Station and under caution you claimed you had forgotten about the date of the hearing.  You have now appeared before me today, 29 April, to face these two charges.  Your co-accused (D2) has already pleaded guilty to some charges and has been sentenced by my learned brother, His Honour Judge Johnny Chan, on 5 February 2013.

7.  Mr Omar has made full and thorough mitigation on your behalf this morning and I have taken into account all that he has had to say.

8.  You are 25 years of age and have one previous conviction of unlawful sexual intercourse with a girl under 16 to which you were sentenced to 4 weeks’ imprisonment in October 2012.  You are from Pakistan and came to Hong Kong in 2009.  You have applied to be a torture claimant in Hong Kong.  You are receiving funds for your daily sustenance of $1,000 a month by the UN.  Briefly, Mr Omar says that you were made use of by D2 for keeping the drugs in your possession and D2 was the one who had actually made the phone call. 

9.  I bear in mind that your co-accused, D2, has been sentenced, and in regard to these facts and D2’s facts, there is, as I can see, no difference so there should not be any disparity of sentence between the two of you.

10.  I am well-aware of the case for trafficking in cannabis, which is Attorney General v Tuen Shui Ming [1995] 2 HKCLR at page 129.

11.  In sentencing you Defendant having regard to the above matters, for Charge 6, had I convicted you after trial I would have taken a starting point of 3 months’ imprisonment.  However, giving you full credit for your plea of guilty, I reduce that term to 2 months’ imprisonment.

12.  For Charge 7, you did not appear in court on the day as appointed.  You did, however, surrender yourself and return to the police station some 3 days later, and for that offence I shall sentence you to 3 weeks’ imprisonment.  Giving you full credit for your plea of guilty, that shall be reduced to 2 weeks’ imprisonment. 

13.  I bear in mind the principle of totality, and I order 7 days of Charge 7 to run consecutive to Charge 6, which makes the total term of imprisonment 2 months and 7 days’ imprisonment.