HKSAR v. Mohammed Ansar

DCCC 217/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 217 OF 2016

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Reasons for Sentence

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1.The defendant was found guilty after trial of trafficking in a dangerous drug, namely 3.43 grammes of a solid containing 3.34 grammes of “Ice”.

2.I found, on the prosecution’s evidence, that he was a drug courier.  There is no evidence he is the mastermind or drug supplier.  However, a courier is a cog in the wheel, and a position that the masterminds cannot do without.

3.PW1, a drug abuser, knew how to contact a drug dealer by WhatsApp.  On 4 November 2015, PW1 got in touch with that person, wanting to buy 3½ grammes of “Ice”.  He agreed to the $2,500 price.  Delivery was arranged for a meeting place at Exit A at Kennedy Town MTR Station. PW1 went to wait outside Exit A.

4.I accepted his evidence that the defendant arrived and he greeted him.  PW1 paid him $2,500 in cash, and the defendant put the “Ice” in PW1’s bag.  They were arrested very soon after.  The defendant was still holding the $2,500 he had received from PW1 in his hand.  Effectively, the defendant was caught red‑handed.

5.PW1 gave evidence against the defendant, and I found, despite the inherent danger of a witness benefiting from giving evidence against another, hoping for a discount in his own sentence, PW1 credible and reliable.  The WhatsApp messages support his evidence he was there to pay for “Ice” that was to be delivered to him.

6.As I said in my verdict, I found the evidence against the defendant strong and overwhelming.

7.The defendant is 28 years old and has been in Hong Kong since 2007.  He comes from India and is here seeking asylum.  He is a holder of a Form 8, which is a recognisance issued by Immigration Department. The defendant is not entitled to work in Hong Kong whilst his application is being processed.

8.The defendant has two convictions in Hong Kong, none related to drugs.  In 2013 he was sentenced to 10 months’ imprisonment for working in Hong Kong when he is not entitled to do so, and in 2015 he was sentenced to 3 months’ imprisonment for conspiracy to defraud.

9.I have been told in mitigation that he married just before his arrest for this offence in November 2015.  His wife is an Indonesian national.  She is now pregnant and due to give birth in November, 2016.

10.Mr Parry has said all he can on behalf of the defendant.

11.There is a tariff from the Court of Appeal for trafficking “Ice”, and I have taken into account the authority of HKSAR v Tam Yi Chun (2)[2014] 4 HKC 256.  The Court of Appeal is of the view that where between 0 to 10 grammes of “Ice” is trafficked, an appropriate starting point would be between 3 to 7 years’ imprisonment.

12.I also note that the defendant is a Form 8 holder seeking asylum in Hong Kong, and although he has no previous convictions relating to drug offences, he already has two previous convictions serious enough to merit terms of imprisonment.  In fact, for his second conviction, he was only released seven months prior to committing this offence.

13.The Court of Appeal is of the view that in certain situations where a torture claimant commits offences in Hong Kong, that can be an aggravating factor.

14.This is now the defendant’s third conviction, and the most serious.  I refer myself to the authority of HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206 212 paras 20-21, and I repeat in particular paragraph 21, where someone in the position of the defendant, a torture claimant, “deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

15.As I have said, this is the defendant’s third conviction, and it is the most serious offence.  I find it is an aggravating factor in this case, following that authority.

16.Defendant, please stand up.  After I take into account the facts of this case, the quantity of drug involved, the role I found you played, the mitigation put forward and the authorities I have just referred to, I will take, for the trafficking of this quantity of “Ice”, a starting point of 4 years’ imprisonment.  To that starting point, I add 3 months for the aggravating factor I have just identified.

17.The defendant has been convicted after trial.  I see no discount that can be applicable to that starting point.

18.Therefore, the defendant is sentenced to 4 years and 3 months’ imprisonment for this offence.