HKSAR v. Nazir Kashif

CACC 272/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2015

(ON APPEAL FROM HCCC NO. 365 OF 2014)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the reasons for judgment of the court):

1.The applicant sought leave to appeal against the sentence of 13 years and 6 months’ imprisonment imposed on him on 12 August 2015, following his conviction by Deputy High Court Judge D’Almada Remedios, as she was then, on his pleas of guilty to two counts of trafficking unlawfully in a dangerous drug, namely 560 grammes (Count 1) and 133.12 grammes (Count 2) of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we refused the application for leave to appeal against sentence and said that we give our reasons for so doing in due course. 　That, we do now.

The facts

2.At 8:40 pm on 20 March 2014, police officers followed and then intercepted a taxi in which the applicant was a passenger at a bus stop at Gold Coast in Castle Peak Road.  The applicant was found to be holding a pink plastic bag in his right hand.  A struggle ensued and he was overpowered.  The plastic bag was found to contain a fruit juice carton, in which were 10 packets of cocaine, and a McDonald’s bag, which contained 3 plastic bags in which were other packets of cocaine (Count 1).

3.A search of the applicant revealed 3 mobile telephones and a keycard for Goodrich Hotel.  Using the keycard police officers gained access to Room 503 at the Goodrich Hotel, Woosung Street in Kowloon.  A search of the room revealed a set of scales, a cutter and plastic bags on top of a wooden cabinet.  A shelf above the bed contained 10 packets of cocaine and a brown plastic sheet, which contained cocaine (Count 2).  Under caution the applicant said that he was helping a friend, Mai Ko, to deliver the dangerous drugs.  He was paid $1,000 for each delivery.

4.Members of the staff of the Goodrich Hotel confirmed that a man named Nazir had occupied various rooms in the hotel on different occasions in the period 3 to 20 March 2014.[1] On and between 18 and 20 March 2014, he occupied Room 503.  CCTV film from the Goodrich Hotel depicted the applicant leaving Room 503 empty-handed at 4:30 pm on 20 March and returning to Room 503 at 8:10 pm carrying a pink plastic bag.  The applicant left Room 503 carrying a pink plastic bag at 8:30 pm.

Reasons for Sentence

5.In her reasons for sentence, the judge noted that none of the applicant’s eight previous convictions were for similar offences.  She noted that in mitigation Mr McGowan said that, since the applicant was not permitted to work, he had borrowed money from a man he had met in prison.  When he was unable to repay the loan, the applicant agreed to deliver dangerous drugs to repay the debt.

6.The judge accepted there were no aggravating factors in the commission of the offence.  Having regard to the guidelines for sentencing in the judgments of this Court in The Queen v Lau Tak Ming [2]and HKSAR v Abdallah Anwar Abbas [3], the judge stipulated a starting point of 20 years and 3 months’ imprisonment in respect of the total amount of cocaine particularised in both counts, namely 693.12 grammes of cocaine.  Affording the applicant a discount of one-third, for his pleas of guilty, from the overall starting point the judge determined that the appropriate overall sentence to be imposed on the applicant was 13 years and 6 months’ imprisonment.

7.Then, she stipulated starting points for sentence in respect of Count 1 and Count 2, namely 19 years and 11 years’ imprisonment respectively. Affording the applicant a one-third discount to reflect his pleas of guilty, the judge sentenced the applicant to 12 years and 8 months’ imprisonment in respect of Count 1 and 7 years and 4 months’ imprisonment in respect of Count 2.  In order to impose the overall sentence of imprisonment that she had identified earlier, the judge ordered that 10 months of the term of imprisonment imposed in respect of Count 2 was to be served consecutively to the term of imprisonment imposed in respect of Count 1.

Grounds of Appeal

8.In the Grounds of Appeal against sentence, Mr McGowan took no issue with a sentence of imprisonment imposed on the applicant by the judge. However, he submitted that the applicant had been denied his opportunity to assist the authorities, because of the latter’s failure to make proper investigations arising from the information provided.  In those circumstances, it was asserted that the applicant was entitled to a discount of sentence, notwithstanding that no fruitful result had been achieved by the provision of information.

The respondent’s submissions

9.For the respondent, Mr David Chan opposed the application.  He submitted that all appropriate enquiries had been made in respect of the information provided.  It was unfruitful.  The applicant was not entitled to any discount in sentence.

Conclusion

10.The court has addressed the submissions advanced by the parties in a separate judgment.  We were satisfied that there is no merit in the application, which we refused.

Mr David Chan, ADPP, of the Department of Justice, for the respondent

Mr James McGowan, instructed by John M. Pickavant & Co, assigned by the Director of Legal Aid, for the applicant