HKSAR v. Sk Hasnainzzaman

HCCC 383/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 383 OF 2015

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

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COURT:

You pleaded guilty on 17 February 2016, before this court, to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The dangerous drugs which you accepted you had trafficked in were 361.86 grammes of cocaine. The estimated value of the dangerous drugs you have admitted trafficking in was $1,098,482.

The Summary of Facts was read out to you and you accepted them. They form the basis of your plea. They are simple. On 27 May 2015, you were with another man when you were observed to throw away a grey plastic bag after being stopped by the police outside the Kowloon Shangri-La on Mody Street, Tsim Sha Tsui. That bag was recovered and it was found to have 56 capsules of cocaine wrapped in paper inside a brown envelope.

By reason of your plea, you knew full well what was in the bag you were carrying at that time. That is why you tried to dispose of it once you realised that you were being stopped by the police.

The background to those facts is less simple according to Mr McGowan, who has submitted on your behalf that you were entrapped into this offending, unusually not by the police or other government authorities but by the very criminals you were dealing with at the time of the offence. He submits that you should receive some discount for that fact and also for other matters he has raised.

As to those other matters, nothing came of them despite numerous further inquiries by the police. For the avoidance of doubt, although I do not believe that Mr McGowan advances this on your behalf, the situation before me does not stand on all fours with HKSAR v W [2013] 4 HKLRD 369, as I do not find that there was any culpable inaction by the authorities, and I accept what I have been told by Ms Wong on behalf of the prosecution about the background to this matter and to the progress of the original investigation and any further investigation in the future.

Nevertheless, Mr McGowan suggested you were set up. He relied upon the principles enunciated by Lord Palmer LCJ in Regina v Birtles [1969] QBD 469, in which it was suggested that there may be occasion where a defendant may have been encouraged to commit a crime by an informer and by a police officer in such circumstances that some reduction in sentence may be appropriate.

The facts of that case are not in any way similar to the facts of the case before me. In that case the crime was set up, not only by a criminal informer but also with the active participation of a police officer. Neither are present in this case. The prosecution have denied the use of an informant and there is no suggestion of, or evidence of, police collusion.

In answer to that, Mr McGowan has taken the court to HKSAR v Cheung Yun Kei [2001] 4 HKC 52, in which the defendant was set up by someone other than the police. The Court of Appeal in Cheung said that the test to be applied is whether there was a real likelihood that the defendant was encouraged to commit an offence which otherwise he would not have committed. But it must be remembered that in Cheung, the court understood that the defendant had indeed been observed by the police as a result of an informant and the court deduced that it could have been someone whom the defendant had identified by name.

In this case, the prosecution deny altogether the use of information received by an informant or that the persons referred to by the defendant were in any way involved in this matter.

In furtherance of that submission, along with some general matters that I will come to in a moment, Mr McGowan also relies upon the fact that you were of good character and have now been full and frank with the police. Whilst you were previously of good character, I am not at all sure you have ever been full and frank with the police, despite giving six non-prejudicial statements.

That is because the evidence before me and the story you provided in interview and that which you provided at a later stage are inconsistent with your current contention that you would not have committed this offence save for the encouragement of others whose primary intention was to have you arrested. That is the element of importance if the suggestion of entrapment by third parties is to succeed.

In order to substantiate that contention so that there was some evidence before the court upon which the court could act, you were offered, but did not agree to, a Newton hearing so that the court could hear from you directly. As a consequence, I only have the bare assertion of counsel and the allegations in your statements which you frankly admit rely upon hearsay and guesswork.

To further his submissions on your behalf, Mr McGowan also asked the court to take judicial notice of the particular practices which appear to have developed in the Yuen Long area and of certain characters whose names come before the court regularly to support the contention that you have been set up to be the ‘fall guy’ as part of some ongoing scheme entered into by the authorities with the drug dealers in which they are allowed to carry on their illegal activities so long as arrests can be made from time to time.

In short, Mr McGowan, doing the best he can for you, asks the court to take a number of matters on good faith which are based upon speculation and innuendo without any direct evidential support.

Even if the court were minded to act without evidence before it of what is contended, which it is not, this argument as enunciated by Mr McGowan is not applied elsewhere. Take, for example, individuals who are persuaded to be drug mules coming into Hong Kong. They are often also young, vulnerable and lacking in worldly wisdom and who, if it was not for the encouragement of a drug cartel, would never have committed such offences. How is your case, at its highest, any different from those cases? Save for the submission that the motive behind this set-up was to provide the police with a supply of convictions to keep them happy and to prevent the arrest of the main offenders.

The same argument could be applied to international importation where it is said that several mules are placed on a single plane so that one or two are sacrificed to allow others to pass. The only difference in this case, you suggest, is that the police are complicit, and in the latter, it is a question of probability with the criminals taking that into account. In any event, there is no evidence before the court of either of these situations in this case.

All of what has been advanced on your behalf rests upon the court taking the view that you were indeed an innocent dupe and that there was a real likelihood that you would not have committed this crime if it were not for the encouragement of others to whom you have referred, and I do not accept that contention.

In interview, you came up with an elaborate story which you now resile from. As is your right, you were silent upon arrest and caution. But in interview, you told the police that you had been out of work and were unhappy that morning. You had initially been at the Star Ferry and then had walked around. You were approached by an unknown black man at the 7-Eleven in Tsim Sha Tsui who asked why you were unhappy. When you explained you were unhappy because you had no money, he had asked you to collect something from one of his colleagues for a $1,000 reward.

He gave you a mobile phone and a key and indicated where you were to go, which was about 10 minutes away by walking. You were told to stand outside the Shangri-La and you collected a bag from another unknown black male outside the hotel. You were expecting to deliver that bag to the original black man for the reward. You said you did not think about the contents of the bag. In other words, you spun a fairly intricate tale of how you had been duped into receiving the bag full of drugs. That was on 27 May 2015, shortly after your arrest.

On 29 February 2016, in your first non-prejudicial statement, you suggested that you came to be in possession of the drugs as a result of being offered work by a neighbour whom you named, but I will not name here, someone whom you knew and whom you had met through friends. You suggested that your version of events was now different because you had been suffering from the effects of drugs on 27 May and had been confused.

But in your statement dated 1 September 2016, you said that you knew that person whom you had originally named was working for another man whom you also named and that they were both dealers in drugs. So you clearly knew what you were being asked to do when he offered you work that day. Nevertheless, in those statements, you maintain that it was purely coincidental that you were outside the Shangri-La that morning when an unknown black male simply came up to you and handed you a bag containing over $1 million worth of drugs just as he, the person you had originally named, walked away to answer his phone. That is not what you have been saying today through your counsel in court.

If it had been true, you could have refused the package that day. According to that version of events, you did not know him and you had not been told to receive the package by anyone and yet, you happily accepted it, and then sought to re-join the man you have identified to the court. You must have known what it was because you sought to discard it when you realised you were being arrested and you have since pleaded guilty to this offence.

The suggestion that you somewhere, innocently, came to be in possession of the bag in your non-prejudicial statements is simply not true, just as the story you gave in interview was not true, and I doubt very much if your current version of events is true either.

You now ask the court to accept that even though you openly mixed with drug traffickers and went to Tsim Sha Tsui in order to work for a drug trafficker, you were set up by him and his boss whom you have named in order to appease the police and that, if not for their encouragement, you would not have committed this offence to which you have pleaded guilty.

I do not believe a word of what you have suggested through counsel. I do not accept that you were wholly innocent. I do accept, as suggested by Mr McGowan, that you were hard up for money and tempted by the offer to earn money by trafficking in dangerous drugs. But I repeat, there is no evidence before the court of the participation of the man that you have referred to in these proceedings or of any untoward agreement with one of them and the police. The only evidence before the court, and which you have accepted, is that you were knowingly in possession that day of what we now know to be a million dollars worth of cocaine and you were knowingly intending to traffic in it.

Mr Hasnainzzaman, you are a foreign national of Indian descent and are 22 years of age and I note that you have a clear record in Hong Kong. You say you arrived in Hong Kong in June of 2014, having got yourself into debt in your own country and fleeing from threats and assaults which persisted after you were here. You are a Form 8 holder but are of no fixed abode and obviously without employment. As a Form 8 holder, the authorities here must have provided you with the means to keep a roof over your head and food to keep you fed.

But Mr McGowan alluded to the fact that you were in financial difficulty at the time of this offending, having lost that financial support, as meagre as it is. That suggestion is also reflected in the video-recorded interview at serial 402 and may have been one reason why you agreed to traffic in dangerous drugs for a $1,000 reward, if that part of your story in the interview was true.

What you should have received and what I expect you did receive was at the expense of the Hong Kong taxpayer. You have come to Hong Kong to seek sanctuary and this is how you repay her, by trafficking in dangerous drugs, and that is an aggravating feature of this case. In HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court of Appeal said actions such as yours in your position is a serious breach of trust, especially, I note, where it involves crimes as serious as dangerous drugs.

For trafficking in 361.86 grammes of cocaine under the guidelines set out in HKSAR v Lau Tak Ming [1990] HKLR 370, the starting point for sentence after trial falls within the range of 12 to 15 years for between 200 and 400 grammes of cocaine. The starting point for 361.86 grammes of cocaine in all the circumstances of this case is therefore 14 years and 6 months. For the fact that you purported to be a refugee and have abused the trust which the citizens of Hong Kong have placed in you, that sentence will be enhanced by a further 12 months, to 15 years and 6 months.

Your will receive a discount of one-third for your timely guilty plea but you are entitled at this stage to no other discount. You may have provided non-prejudicial statements to the authorities, but Mr Hasnainzzaman, I have little faith that they are true. I am not at all surprised that no action has been taken in furtherance of them and I frankly say that I would be surprised if any action was taken in the future.

You will go to prison for 10 years and 4 months.