HKSAR v. Ali Saif

HCCC 133/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 133 OF 2017

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

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COURT:

The defendant pleaded before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court for sentence.

At the first hearing before me, he confirmed his guilty plea. The matter was then adjourned for matters relevant to mitigation. A few days earlier, the court received a letter from the defendant, the content of which points at a possible equivocal plea.

Today, learned defence counsel, Mr McGowan, confirms that the court can totally disregard what the defendant mentioned in the letter insofar as it relates to the facts of the case. The defendant also confirms that he had been advised of what the prosecution has to prove against him and he also confirms the guilty plea and admitted the Summary of Facts. In the circumstances, the sentencing process continued.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. When the defendant was approached by police officers on the street, he put the plastic bag he was holding into a planter near him. He was then intercepted and inside the plastic bag which he had just discarded were 199 grammes of a solid containing 121 grammes of cocaine.

The defendant is a Pakistani. I was told he is now 30 years old. He is single and has never been to school. He has lodged a non-refoulement claim which is not yet finally decided.

He is not a first-time offender. In 2015, for a conviction of breach of condition of stay because he had overstayed, he was sentenced to 3 weeks’ imprisonment, suspended for three years. He committed the present offence during the operational period of the suspended sentence.

In mitigation, Mr McGowan stressed that the defendant pleaded guilty at the earliest opportunity and he had attempted to render assistance to the authorities. He also informed the court that the defendant, who had received very little formal education, was engaged in mobile phone trading in his home country. It however did not yield enough profit to maintain the business and his living. As a result, he had to borrow money and he was not able to repay the loan. He was subject to threat of his life and therefore he left the country to seek asylum.

The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 are applicable since the narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of 8 to 12 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is 50 to 200 grammes.

Having considered the whole circumstances, bearing in mind this is the first time the defendant commits a dangerous drug-related offence, I do not see any grounds to depart from the tariff. In my judgment, an initial starting point of 9 years and 9 months is appropriate.

I note the defendant is staying in Hong Kong on recognisance since he has lodged a non-refoulement claim. Having regards to HKSAR v Shah Syed Arif, CACC 298/2015, HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206 and HKSAR v Norena Christian Andres, CACC 319/2014, despite Mr McGowan urged me to exercise discretion not to do so, I am of the view that the starting point should be enhanced by 12 months.

From the ultimate starting point of 10 years and 9 months, the defendant is entitled to a one-third discount for his guilty plea. I have considered whether the defendant is still entitled to such a discount in the light of what is said in the letter. Bearing in mind he eventually confirmed his guilty plea, in my judgment, there is no need to have a downward adjustment for the discount for guilty plea. Having considered the whole circumstances including what learned defence counsel said on his behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.

The defendant committed the present offence during the operational period of a suspended sentence. Having considered the whole of the relevant circumstances, including that the previous offence is of a different nature, the present offence was committed one year after the suspended sentence had been imposed and that the term of the suspended sentence may be said to be insignificant in the light of the length of the present sentence, in my judgment, that is insufficient justification not to activate the suspended sentence in full.

By reason of the matters aforesaid, you are sentenced to an imprisonment term of 7 years and 2 months for the present case. The suspended sentence previously imposed on you is activated in full. Having regard to totality, I order the sentence of the present case to run wholly consecutively to the activated suspended sentence. As a result, you are to serve a total sentence of 7 years 2 months and 3 weeks for the two cases.

I am reminded that the suspended sentence should be 2 weeks. So the total sentence you have to serve is 7 years 2 months and 2 weeks.