HKSAR v. Demir Unsal Talha

HCCC 224/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 224 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The defendant has been convicted on his own plea on one count of trafficking in a dangerous drug. The Particulars of Offence provide that on 3 January 2015 at the Customs Arrival Hall B, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 4.16 kilogrammes of a solid containing 2.70 kilogrammes of cocaine.

The Summary of Facts admitted by the defendant provides that at about 6.15 pm on 3 January 2015, the defendant, a Turkish male, aged 27 at the time, was pushing a baggage trolley with two suitcases and a rucksack when intercepted by Customs officers at the “Nothing to Declare” zone at Customs Arrival Hall B of the Hong Kong International Airport upon arrival from Dubai to Hong Kong.

Ion scan was conducted on the two suitcases which tested positive for drugs. The defendant was asked in English whether the two suitcases belong to him and he replied in the affirmative. X-ray examination of the two suitcases revealed suspicious objects inside the two suitcases. Upon examination, a false compartment was found inside each suitcase and concealed inside was a black aluminium bag containing white powder, later found to be a total of 4.16 kilogrammes of a solid containing 2.70 kilogrammes of cocaine. No contraband was found in the defendant’s rucksack.

The defendant was arrested for trafficking in a dangerous drug in English. Under caution, he replied, “No English”. The Customs officer pointing at the white powder asked the defendant whether he knew what the substances were. The defendant shook his head and did not respond.

As no Turkish Interpreter was available, assistance was sought from a Turkish Interpreter over the telephone to conduct the translation. With the assistance of the Turkish Interpreter, under caution, the defendant admitted he had cocaine in his luggage. He came from Brazil to Hong Kong, and from Hong Kong he would go to Turkey as Customs was tough from Brazil to Turkey, but not from Hong Kong to Turkey.

He was in a bad financial situation. He bought the drugs from Brazil and intended to take the drugs to Turkey for sale. He had purchased the air ticket and planned the trip himself. He would stay in Hong Kong at the Chung King Mansion for three nights.

The estimated market retail value of the drugs seized was HK$4,064,320.

By way of personal background, the defendant is 28 years of age. He was born in Turkey in January 1987. At the time of his arrest he worked in a coffee shop. He had previously been a technician. He lived with his father, his mother having passed away. The defendant has a clear record in Hong Kong and in Turkey.

By way of mitigation, Mr John Marray urged upon this court to take into account the defendant’s guilty plea. The defendant got himself involved in the drug trade because of the financial difficulty faced by his father. The defendant had to borrow money from loan sharks in Turkey in order to repay his father’s debt. He owed the loan sharks some US$7,000. When the defendant was unable to repay the loan sharks, they threatened to kill his father. That was when the loan sharks suggested that the defendant should traffic drugs as a way to repay his debts.

I am told by Mr Marray that the defendant only put forward this to explain his reasons for committing the offence. The defendant does not rely on the defence of duress. Indeed, the defendant took no steps to avoid the duress, for example, by informing the police or the Customs of the threat.

In any event, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant offer little mitigation in serious cases of drug trafficking, where severe deterrent sentences are warranted in order to protect the public.

The defendant has been convicted on one count of trafficking in a dangerous drug, namely 4.16 kilogrammes of a solid containing 2.70 kilogrammes of cocaine. Sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin. In the case of HKSAR v Abdallah [2009] 2 HKLRD 437, it was held by the Court of Appeal that for trafficking in 1,200 to 4,000 grammes of heroin, the guideline starting point for sentence after trial should be 23 to 26 years’ imprisonment.

The defendant was caught trying to import the dangerous drug into Hong Kong. In HKSAR and Abdallah (supra) at paragraphs 42 and 43, the Court of Appeal further held that if there is an international element in the trafficking of drugs, there should be an enhancement of the starting point in sentence, and for amounts of narcotic above one kilogramme, the enhancement should not be less than 2 years.

In my view, following the principles set out above and based on the quantity of the narcotic involved, the proper initial starting point for sentence in the present case should be 24 years and 7 months’ imprisonment. Two years should be added to that by way of enhancement for the international element. This will take the starting point up to 26 years and 7 months’ imprisonment. Finally, I shall give the defendant the full one-third discount for his timely guilty plea.

Defendant, can you stand up please.

The defendant is accordingly sentenced to 17 years and 8 months’ imprisonment.