HKSAR v. Shakeel Ahmed

HCCC 27/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 27 OF 2016

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

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COURT: Defendant, the jury have found you guilty after trial of an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. They have found that on 27 June 2015, at Flat D, 5th Floor, Hong Lok House, No 477 Nathan Road, Yau Ma Tei, Kowloon, that you unlawfully trafficked in 2,158 grammes of a solid containing 967 grammes of cocaine, 118 grammes of a crystalline solid containing 116 grammes of methamphetamine hydrochloride and 43.7 grammes of cannabis in herbal form.

On 27 June, at about 3 am, you were intercepted by police officers on Nathan Road. You were searched and found on your person was just over $17,000 and some keys. At about 3.10 am, the officers took you to the premises in question, that is at Hong Lok House. The keys found in your possession were keys to the locks of the door of that flat D.

Inside the flat, the drugs referred to and quantified in the charge were found. They were found in two Hennessy boxes and a Jack Daniels box and a box with ‘Jin Xin’ on it. There were also found, in a Lenovo black case, together in the case were electronic scales, numerous other plastic bags and $87,850.

The total value of the drugs was $2,311,258.

A copy of your Form 8 was found in the flat together with a California Fitness card in your name. Your DNA was found on two toothbrushes located in the toilet and your fingerprint was found on the sticky side of an adhesive tape stuck on the Jack Daniels box. It is clear from that evidence you were the occupier of that flat and, as the occupier, you possessed everything in there, including the dangerous drugs and the items relating to the dangerous drugs.

You are now 33 years of age and are single. You come from Pakistan and you are an asylum seeker here in Hong Kong. You have two previous convictions, dating back to 2007. One of those convictions was possession of an identity card relating to another. The other was remaining in Hong Kong unlawfully. You were sentenced to 12 months’ imprisonment totally for both charges.

Mrs Panesar tells me that you are here in Hong Kong alone. You came to Hong Kong as there were threats to your life in Pakistan and therefore you applied to stay in Hong Kong as a torture claimant. Your parents are 50 and 55 years old and are in Pakistan. It is clear from the evidence that you have given that you were on welfare provided to you by International Social Services. You received food coupons to the value of $1,200 and the rent was paid for by ISS. As a result of the jury finding you guilty, it is clear beyond doubt that you were trafficking in these drugs.

The estimated value for the drugs was extremely large at $2.3 million. There was a very large amount of cash found in your flat, some $87,000. On your person, there was found some $17,000 further of cash.

You were the holder of a Form 8 recognisance in Hong Kong as a result of your claim to be a torture claimant. The commission of this offence means that you have abused the hospitality and liberty offered by the Hong Kong Government to people like yourself. Holders of Form 8 who commit criminal offences which, by its nature, has a serious detrimental effect on the community at large, can expect an upward adjustment of their sentence. The offence of trafficking in drugs is accepted as being an offence which, by its nature, has a serious detrimental effect on the community at large. The upward adjustment is at the discretion of the court.

I have reference to the Court of Appeal case of HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206. In giving the judgment of the Court of Appeal in that case, Macrae J (as he then was) said at paragraph 21:

“When someone in the position of the 2nd appellant 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.”

This is one such case where an upward adjustment is to be made. As Mrs Panesar says, there is nothing in your mitigation which has a bearing on the sentence to be passed upon you. This court is guided by sentencing guidelines in respect of trafficking in dangerous drugs. As you were trafficking in a large amount of drugs, correctly, Mrs Panesar points out this results in you having to serve a substantial sentence. There are no mitigating factors in this case such as to reduce the proper sentence.

The drugs involved three kinds or types of drugs. They were cocaine, methamphetamine hydrochloride, commonly known as ‘Ice’, and herbal cannabis.

The guideline case for trafficking in such large amounts of cocaine is set down in Abdallah Anwar Abbas. For trafficking in amounts between 600 to 1,200 grammes of cocaine, the starting point is one of between 20 and 23 years, after trial. Taking those guidelines into account, the appropriate starting point for 967 grammes of cocaine is one of 21 years and 9 months’ imprisonment.

For trafficking in ‘Ice’, the guideline case is Tam Yi Chun. For amounts between 70 to 300 grammes, the starting point after trial is one of between 11 and 15 years’ imprisonment. You were trafficking in 116 grammes of ‘Ice’ and the appropriate starting point, had you been convicted after trial, is one of 11 years and 9 months’ imprisonment.

In sentencing you, I take the combined approach, and in taking the combined approach, I also take the conversion of ‘Ice’ to cocaine and converting this amount of ‘Ice’ to cocaine would amount to about 191 grammes of cocaine. Adding 191 grammes to 967 grammes of cocaine, that would be 1,158 grammes of cocaine. In following Abdallah Anwar Abbas, that is at the upper end of that bracket and the appropriate sentence for you, after trial, is 22 years and 9 months’ imprisonment.

I also enhance that starting point by 1 year on the basis that this is an aggravating factor that you are a Form 8 holder, abusing the hospitality and liberty offered by the Hong Kong Government.

Therefore, the total sentence to which you shall serve is one of 23 years and 9 months’ imprisonment.

In respect of the cannabis, that is a very small amount. In those circumstances, I did not take that amount into account when passing sentence on you.