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HCCC 221/2017
[2018] HKCFI 360
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 221 OF 2017
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| Before: |
Hon Campbell-Moffat J |
| Date: |
15 January 2018 at 12.14 pm |
| Present: |
Ms Lily Yip, SPP(Ag) of the Department of Justice, for
HKSAR |
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Mr John Hemmings, instructed by Massie & Clement,
assigned by DLA, for the accused |
| Offence: |
(1) Trafficking in a dangerous drug (販運危險藥物) |
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(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:
You pleaded guilty on 3 July 2017, before Mr Cheng Lim-chi, sitting in the Eastern Magistrates’ Court, to two counts of traffic in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drugs which you accept you have trafficked under Count 1 was 2,880.8 grammes of cocaine, and under Count 2, was 2,884 grammes of cocaine.
The estimated street value of those dangerous drugs at the time of this offending was $7,460,177.
The Summary of Facts, Mr Waheed, had been read out to you previously, and you have confirmed they represent the basis of your plea. You were intercepted in the lift lobby of Hampton Place on 12 October 2016, having been observed in Tower 1, entering a flat empty-handed, but leaving shortly afterwards with a plastic bag which was found to contain two further plastic bags containing 2,870 grammes of cocaine. A body search recovered a further 10.8 grammes from your trousers pocket, making a total of 2,880.8 of cocaine, which forms the basis of Count 1.
A search of the flat itself which you had entered and for which you had a magnetic key, revealed a further 2,884 grammes of cocaine; three weighing scales, and various plastic bags. You also had $24,558 in your possession at the time that you were apprehended.
As is your right, you remained silent upon arrest and caution, but in interview, you said you were under the influence of drugs at the time of your arrest. The flat, you said, belonged to a friend, and you had picked up the plastic bag not knowing the contents of it. As for the HK$24,000 you had in your possession, you said this represented someone else’s wages from a restaurant business, and you were passing it on to that person for a friend. None of this, of course, was true, as is evidenced by the fact that you have now pleaded guilty to the drugs found upon you and to the drugs found in the flat.
You are an asylum seeker. You entered Hong Kong in 2009, and as such, you had benefited from the generosity of the Hong Kong Government and its people. But you have returned the trust placed in you by becoming involved in serious crime. This is an aggravating feature of this case, and in HKSAR v Shah Syred Arif [2016] 4 HKLRD 664, the Court of Appeal said action such as yours in your position is a serious breach of trust, especially in relation to crimes as serious as this, which harm our community. This is compounded by the fact that this is not your first time to be dealt with for trafficking in dangerous drugs. On 6 August 2012, you were sentenced to 5 years’ imprisonment for trafficking in 48.45 grammes of cocaine and you were released from that prison sentence on 12 November 2014. This offence took place on 12 October 2016, but it is far more serious.
Mr Hemmings has said all that he can on your behalf, given your circumstances, and I have taken it into account.
Under Count 1, for trafficking in 2,880.8 grammes of cocaine under the guidelines in HKSAR v Lau Tak Ming [1990] 1 HKLR 370, and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for sentence after trial falls within the range of 23 to 26 years, for between 1,200 and 4,000 grammes of cocaine. The starting point after trial for 2,880.8 grammes of cocaine, in all the circumstances of this case, is therefore 24 years and 9 months. There is also the aggravating factor of your status as a Form 8 holder, and the fact that by committing this crime, you were liable for a serious breach of trust. For that, you will receive an enhancement of 1 year, making 25 years and 9 months for Count 1.
Under Count 2, for trafficking in 2,884 grammes of cocaine under the guidelines in HKSAR v Lau Tak Ming [1990] 1 HKLR 370, and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for sentence after trial also falls within the range of 23 to 26 years, for between 1,200 and 4,000 grammes of cocaine. The starting point after trial for 2,884 grammes of cocaine, in all the circumstances of this case, is therefore 24 years and 9 months as well. There is also the aggravating factor of your status as a Form 8 holder, and the fact that by committing this crime, you were liable for a serious breach of trust, and for that, you will receive an enhancement on this count, making 25 years and 9 months for Count 2.
As the drugs you were carrying had obviously formed part of the drugs found within the flat, and you had clearly only just taken the drugs under Count 1 from the stash of drugs under Count 2, I considered these two counts arise out of the same facts. As such, I intend to approach the principle of totality on the basis that this was one single piece of offending. I make no criticism of the manner in which it was indicted and understand why that would have been the case, but in the interest of justice and for sentencing purposes, I find in my discretion that it would be just and proper for you to be treated as if this was one count, on the totality principle.
For a total of 5,664.8 grammes of cocaine, the starting point after trial would have been 26 years and 6 months. If this had been one count, you would have received an enhancement of 1 year upon that for your serious breach of trust as a Form 8 holder, making a total starting point of 27 years and 6 months. You would have received a full discount of one-third, making a total sentence of 18 years and 4 months.
However, I intend to enhance that discount to fractionally below that suggested by Mr Hemmings on your behalf, and so I intend that you serve a sentence of 16 years and 6 months, and to give that effect, and taking into account what I have said individually in respect of Counts 1 and 2, the appropriate sentence on Count 1 should be 25 years 9 months, which after discount of just under 40 per cent, would make a sentence of imprisonment of 15 years and 6 months. You will also go to prison for 15 years and 6 months on Count 2, and will serve all but 1 year of that concurrently, with the sentence you are to serve under Count 1, so that in total, you will serve a period of 16 years and 6 months, which will reflect a discount of just under 40 per cent from the 27 years and 6 month sentence you would have received, if this had been charged as one count.
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