HKSAR v. Alam Waseem

HCCC 168/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 168 OF 2016

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

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COURT:

Defendant, you have been found guilty, after trial, by the jury of an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

They have found that on 16 August 2015, outside Room 6, Flat B7, Reliance Inn, 13th Floor, Block B, Chungking Mansions, Tsim Sha Tsui, Kowloon in Hong Kong, you unlawfully trafficked in 15.34 grammes of a solid containing 6.16 grammes of cocaine, 12.30 grammes of a crystalline solid containing 12.30 grammes of methamphetamine hydrochloride, 159 grammes of cannabis in herbal form, 56.10 grammes of cannabis resin and 22 tablets containing a total of 0.10 gramme of methamphetamine and 2.21 grammes 3,4-methylenedioxymethamphetamine.

The facts can simply be put that on that day at about 5.30 pm, two uniform officers went into these premises and saw you leaving a room 6, carrying a bag full of all these drugs as stated in the charge. Apart from these drugs, there were many empty resealable plastic zip-lock bags and other drugs which do not form part of the charge. Also in the bag were electronic scales.

The retail street value of the dangerous drugs at the time of seizure was $40,961.

Mr McGuinniety, your counsel, has not put forward much mitigation on your behalf as he says there is very little that he can say for you after you have been found guilty, save and except, he says, that people like yourselves who are torture claimants in Hong Kong, have fallen prey to the temptation to avail yourselves of some profit through drug trafficking.

You are 27 years of age. You came to Hong Kong in 2013 and shortly after your arrival, you made a claim to the Hong Kong Government not to be returned to your home country of India. You arrived in Hong Kong in 2013. Shortly after your arrival in 2014, you started committing offences in Hong Kong.

So far as your criminal record is concerned, you have five previous convictions. Four of them are related to dangerous drugs. Of those four, three are for possession of dangerous drugs and one is similar, that is, you have a conviction of trafficking in dangerous drugs to which you were sentenced to imprisonment in April 2014. You committed this offence on 16 August 2015; that would have been shortly after you were released from prison.

The fact that you are a torture claimant is no excuse to be committing crimes in Hong Kong. It is clear from the Court of Appeal’s judgments that for torture claimants who commit these very serious drug trafficking offences, this is an aggravating factor of which the court should enhance sentencing starting points, the reason being that you have committed an offence in Hong Kong whilst you have been permitted to be at liberty in Hong Kong as a torture claimant. You have abused Hong Kong’s hospitality.

The Court of Appeal has held the commission of an offence has a serious detrimental effect on the community and which tarnishes Hong Kong’s reputation for order and security. The Court of Appeal’s cases are that of HKSAR v Sandagdorj, HKSAR v Shah Syed Arif and HKSAR v Norena Gutierrez Cristhian Andres.

I accept from Mr McGuinniety that the setup was very unsophisticated. You had rented a guesthouse room for the purposes of your trafficking. However, the drugs themselves, as Mr McGuinniety accepts, were of a very wide kind. There were, in this bag, five different types of drugs: cocaine, ‘Ice’, herbal cannabis, cannabis resin and tablets containing some ‘Ice’. This is what the court calls a cocktail of drugs which also calls for an enhancement of the starting point.

The other enhancement factor is of course the fact that you have a previous similar conviction. Less than a year after your conviction, you committed this offence.

Mr McGuinniety is correct to say there are no mitigating factors in your case. The only things there are, as I have mentioned, are aggravating factors. For trafficking in dangerous drugs, the Court of Appeal in Hong Kong have laid down tariffs or guidelines in respect to different types of drugs. You had many different types of drugs here and for the purposes of sentence, I shall take the combined approach and then the conversion approach to some of the drugs.

In sentencing you, the most serious drug in this case is that of ‘Ice’. What I shall do is use ‘Ice’ as the main drug and then convert the other drugs as if they were ‘Ice’ and then I shall arrive at an appropriate sentence. Dealing first, however, with the individual drugs as mentioned in the charge and in the order as listed in the charge. The first drug mentioned is 15.34 grammes of a solid containing 6.16 grammes of cocaine. The actual drug is cocaine and the amount is 6.16 grammes.

The guideline case for trafficking in the drug cocaine is that of Lau Tak Ming. For trafficking in up to 10 grammes, the Court of Appeal have laid down starting points of between 2 and 5 years’ imprisonment. For this quantity of cocaine, as you have been convicted after trial, the appropriate sentence if you had been sentenced only for cocaine, would be 3 years 9 months’ imprisonment. However, in converting this amount of cocaine, given the sentence imposed, that equates to 2 grammes of ‘Ice’.

The next drug in the charge is that of ‘Ice’, that is methamphetamine hydrochloride. You were trafficking in 12.30 grammes. The guideline case for trafficking in ‘Ice’ is that of Tam Yi Chun. For trafficking in amounts between 10 and 70 grammes, a starting point after trial would be one of 7 to 11 years’ imprisonment. Given the quantity that you had trafficked in, that starting point would be one of 7 years’ imprisonment.

The next two drugs are that of herbal cannabis and cannabis resin. Cannabis resin is much more serious than herbal cannabis. The leading case for sentencing in cannabis resin is Tuen Shui Ming. The guideline set down there is, under 500 grammes, as the court thinks fit. Cannabis resin is four times more potent than herbal cannabis. Therefore, in converting the herbal cannabis to cannabis resin, I divide that by 4 and that would amount to approximately 39.75 grammes of cannabis resin. Adding that to the cannabis resin as stated in the charge, of 56.10, would make a total of 95.75 grammes of cannabis resin. For that amount of cannabis resin, I consider a starting point of 3 months’ imprisonment to be appropriate.

The remainder of the drugs were 22 tablets containing 0.10 gramme of methamphetamine and 2.21 grammes of 3,4‑methylenedioxymethamphetamine. They are very small amounts and I shall not take these amounts into account.

For the purposes of sentencing you, therefore, I only take into account the cocaine and the ‘Ice’ because the herbal cannabis and the reminder of the drugs are nominal in amount. Therefore, as the cocaine was equivalent to 2 grammes of ‘Ice’, the total 'Ice' that you were trafficking in was 14.30 grammes. Following the guideline in Tam Yi Chun, you are to be sentenced to 7 years and 3 months’ imprisonment.

As I mentioned, that is the starting point to which I start your sentence, however, there are three factors calling for an enhancement to that starting point as they are aggravating factors. Those three factors are your previous similar conviction for trafficking; the second is that you are a torture claimant, abusing Hong Kong’s hospitality; the third is for the cocktail of drugs which you were trafficking in.

Taking into account all these factors, I enhance your sentence by 1 year, making the total term of imprisonment to which you shall serve to be one of 8 years and 3 months’ imprisonment.