Hkshar v. Mushtaq Zeeshan

HCCC 130/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 130 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant was found guilty after trial of one count of trafficking in dangerous drugs. In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts of this case are simple. The defendant arrived at the room in which the dangerous drugs in question were found. When he was about to gain access into the room, he was stopped by police officers who had been carrying out observation.

Upon search of the room, 6.29 grammes of a solid, containing 2.52 grammes of cocaine and a total of about 2,470 grammes of a solid and powder containing about 1,540 grammes of cocaine hydrochloride were found.

I was told that the defendant is 28 years of age. He came from Pakistan and had been staying in Hong Kong under recognisance as he has filed a torture claim. His family is still living in Pakistan.

He is not a first-time offender. In May 2009, he was convicted of possession of dangerous drug. In October of the same year, he was convicted of trafficking in dangerous drug. He committed this offence in breach of a suspended sentence. In June 2014, he was convicted again for trafficking in dangerous drug which in fact arose also from the present case. At the time he was stopped by the police officers, the defendant was in possession of a small quantity of dangerous drug.

In mitigation, learned counsel for the defence, Mr Haynes, asked for leniency and said the defendant was not living in the room in question. He stressed that there is no evidence to show that the defendant occupied a major role in the matter.

The drugs involved in the present case were cocaine and cocaine hydrochloride. The Court of Appeal held in AG v Chang Chen Li Sa, [1995] 1 HKCLR 69, that in a case of trafficking in cocaine, the guidelines in Lau Tak Ming [1990] HKLR 370, is applicable since the narcotic content of the two drugs are very closely alike in the degree of harm. The dangerous drug involved in AG v Chang Chen Li Sa was cocaine hydrochloride. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin, if the narcotic quantity is over 600 grammes.

In a subsequent case of HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal held that a sentence of 23 to 26 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 1,200 to 4,000 grammes. This decision is applicable to the present case.

In all the circumstances, I am of the view that only a starting point of 23 years and 3 months is sufficient to reflect the nature and seriousness of the case.

Although the defendant had had a previous conviction for trafficking in dangerous drug back in 2009, judging from the sentence, it was probably for a small quantity only. It took place about four years before the present case was committed. I have given consideration as to whether the present sentence should be enhanced because of this record and come to the decision it is not necessary to do so.

Having considered the whole circumstances, including what learned defence counsel said on behalf of the defendant, in my judgment, no significant mitigation factor is available to the defendant.

For the other trafficking offence which the defendant committed at the same time, he had been sentenced to 2 years’ imprisonment. The Court of Appeal observed in HKSAR v Touray Edrisa, CACC 124/2010, that in cases of multiple unlawful trafficking in dangerous drug that are connected closely in time and factually, it is appropriate for the sentencing court to have regard to the overall quantity of the narcotic.

That offence involved a small quantity of cocaine. In my judgment, a wholly concurrent sentence for the two matters would have been appropriate.

An order of concurrent sentence is no longer possible now as the defendant had already fully served the 2 years’ imprisonment term. In the circumstances, I consider it fair and appropriate to adjust the present sentence so that, in effect, the defendant will serve the same total length of sentence. I therefore reduce the sentence to be imposed on the defendant for the present case by 2 years.

So defendant, please stand up.

By reason of the matters aforesaid, I sentence you to an imprisonment term of 21 years and 3 months.