HKSAR v. Yahya Yahya Salim

HCCC 262/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 262 OF 2015

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

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COURT: Defendant, Yahya Yahya Salim, I now formally convict you of the offence charged of you on the indictment based on your own plea of guilty. The offence is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that on 20 January 2015, at Lok Ma Chau Control Point, Lok Ma Chau, New Territories in Hong Kong, the defendant, that is you, unlawfully trafficked in a dangerous drug, namely 489 grammes of a powder containing 287 grammes of cocaine.

You have also admitted the summary of facts prepared by the prosecution. The summary reads as follows.

At around 2015 hours on 20 January 2015, a 7-seater vehicle bearing Hong Kong registration mark MF1389 (“the vehicle”), driven by a Chinese male He Zhiquan, formerly D1, with the defendant, a Tanzanian male, Yahya Yahya Salim, aged 36 at the time, and three others, formerly D2, D4, and D5 on board as passengers arrived at the Customs Arrival Kiosk number 16 of Lok Ma Chau Control Point for Customs clearance. Senior Customs Officer 9675 (PW1), selected the vehicle to the Private Car Clearance Depot for secondary inspection.

Upon arrival at the Private Car Clearance Depot, the defendant and three passengers were instructed to pick up their personal baggage for examination. A red rucksack, that is Exhibit P6, was left unclaimed in the boot of the vehicle. All four passengers denied knowledge of the rucksack. At about 2120 hours, under the supervision of Senior Customs Officer 9368, Customs Officer 0756 (PW2), found suspicious white powder inside a black bag wrapped with brown tape inside the red rucksack.

Customs Officer 06230, that is PW4, took over the rucksack and conducted an ion scan test on it. A positive reading for cocaine was obtained.

No irregularity was found upon a subsequent vehicle search and baggage examination.

When arrested and cautioned, the defendant said he did not know the driver and other passengers on board the private vehicle. He did not know to whom the red rucksack belonged. The defendant’s reply was post-recorded.

Officers of the Hong Kong Police Force were summoned to the scene to extract DNA traces and fingerprint samples.

A pair of blue jeans, a pair of grey trousers, two T‑shirts and a bathrobe were found inside the rucksack and these items were sent to the Government Laboratory for analysis.

The defendant was interviewed under caution on video from 1458 to 1551 hours on 22 January 2015. In gist, he stated the following:

(a) He is a businessman dealing in telephones. He operates his business in Tanzania and travels to China on business.

(b) Each time he visits China, he buys 300 to 350 phones.

(c) He earns around US$2,000 to US$2,500 per month.

(d) He has been doing this work since 2013.

(e) He is a married man with two children. He lives with the family, his parents also live in the same household.

(f) He has received education up to Primary 6 level.

(g) He went to China to give his order for the purchase of phones. He was allowed to stay in China for seven days.

(h) He had been to China six to seven times between 2014 and 2015.

(i) He stayed in a hotel in Guangzhou.

(j) He identified a large and small bag as his. The small bag being a rucksack but not the one in which the drugs were found.

(k) He used a black van to travel to Hong Kong from Guangzhou. There were three other persons and a driver. He did not know any of them. There was no communication with them. There were other pieces of luggage before he boarded the van. When asked about the red rucksack found to contain drugs, the defendant said he did not remember if that was amongst the ones he had seen.

(l) Because the van was almost full, he placed his baggage at the edge. He sat in the middle of the vehicle.

(m) He took a van to Lok Ma Chau and changed to another van to proceed onwards to the airport.

(n) The second vehicle was silver in colour. When he boarded the second vehicle, he saw his luggage being transferred from the first vehicle but he did not know where they had placed his luggage.

(o) When he was at the Lok Ma Chau Boundary Control Point, he took his own bags, the red rucksack remained and the passengers were asked to take their own luggage.

(p) He maintained he did not know to whom the red rucksack belonged.

The drug exhibit was examined by Government Chemist, Chan Tai-wai, David (PW17), and found to consist of 489 grammes of powder containing 287 grammes of cocaine.

The street value of the dangerous drug was $477,753.

A buccal swab, reference number AA508547, was taken from the defendant by PC 14807 (PW13). It was sent to the Government Laboratory for profiling and comparison with any DNA lifted from the drug-related exhibits.

DNA was detected from the inner surface of the jeans. The major source of the DNA sample found on the jeans was believed to be the defendant’s DNA. The Chemist, Ip Chi‑yuen (PW15) stated:

“The DNA found on the inner surfaces of the pair of blue jeans (area A) in item GP2 30669 was a mixture for at least two sources with one of them being predominant. The major DNA source was admixed with other DNA sources present in low quantity which offered little information for identification purpose. Such major source could have been AA508547.”

The Random Match Probability for this major source of DNA is 1 in 9.44 quintillion.

The defendant’s travel movement record provided by the Hong Kong Immigration Service showed that he last arrived in Hong Kong via Lok Ma Chau Control Point at 2017 hours on 20 January 2015.

The defendant now formally admits and accepts that at all material times he had trafficked in the dangerous drug referred to in the charge in Hong Kong.

On behalf of the defendant, Mr McGowan has addressed me in mitigation of sentence. The defendant offers his apology to the public in Hong Kong and he has admitted his guilt at a very early stage. He was a phone businessman. He came to Hong Kong to source phones. He was the sole breadwinner of his family. He has a wife who unfortunately had lost both of her legs in a traffic accident some time ago. Their third child was born after his incarceration for this offence, and died at 3 months.

Now his wife lacks financial support for her and their two children. The 9 year-old child has to stop schooling because of lack of finances. Not only has he pleaded guilty to this offence, he has joined a campaign to ask Tanzanian people not to traffic in dangerous drugs. Mr McGowan describes that as an active step towards showing his remorse, in effect.

In Attorney General v Rojas [1994] 1 HKC 342, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to trafficking in cocaine.

According to The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370, as modified HKSAR v Abdallah [2009] 2 HKC 197, for trafficking in 200 to 400 grammes of heroin, cocaine being treated equally, the sentence should be in the range of 12 to 15 years’ imprisonment. Moreover, the importation of a dangerous drug is an aggravating factor: see the cases referred to in Cross and Cheung, Sentencing in Hong Kong, 7th edition, pages 627 to 628.

Mr McGowan has referred me to the case of HKSAR v Maumba Hassani Rashidi CACC 410/2014, 21 May 2015 (unreported), at paragraph 9 of which the court set out the broad guidelines for enhancing the sentence where an international element is involved, as in the present case, “between 250 and 500 grammes, 6 months to one year as the enhancement”.

Drug trafficking is a very serious offence and sentencing is almost wholly dependent on established guidelines and authorities. Save in rare circumstances, personal situation matters little and very little discretion is left to the sentencer.

Considering the above authorities and the circumstances of this case, the starting point that I adopt is 13 years and 3 months’ imprisonment, and it has to be enhanced to take into account the drugs being imported from China, the international element. I adopt 6 months as the enhancement. Therefore, the total starting point is 13 years and 9 months.

The defendant is entitled to a full one-third discount for his guilty plea which reduces the sentence to 9 years and 2 months.

I accordingly sentence the defendant to a term of imprisonment for 9 years and 2 months.