HKSAR v. Ansir Mahmood and Another

HCCC 165/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 165 OF 2016

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

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COURT:

On 20 July this year, the 2nd defendant pleaded guilty to trafficking and manufacturing cocaine. There then followed a trial and on 2 August 2017, after nine days of trial, the 1st defendant was convicted of trafficking, Count 1, but was acquitted on Count 2 of manufacturing cocaine.

The evidence in the case was concerned with a 10-day period between 15 and 24 September 2015, when these two defendants were utilising a room at Harbour Plaza 8 Degrees Hotel in Kowloon City Road, for the purposes of trafficking in cocaine. The room on the 15th floor of that hotel was rented for the whole month and was paid for in cash by the 1st defendant.

As the 2nd defendant admitted when giving evidence on behalf of the 1st defendant during the trial, the idea of taking hotel rooms was to enable trafficking to go on while keeping on the move from hotel to hotel.

The 1st defendant visited the room in the hotel with which we are concerned, using his room key on no less than 41 occasions, quite often, in the early hours of the morning or late at night. His last visit coincided with the attendance of police surveillance officers on 24 September and he was arrested as he attempted to enter the room.

Numerous unknown persons had visited that room on 24 September whilst either D1 or D2, the 1st or 2nd defendants, or indeed both of them, were there. This also applies to previous dates as observed by CCTV cameras.

The 2nd defendant was not only trafficking from that room which, in his case, was visited by him on no less than 47 occasions, but he was also manufacturing crack cocaine from cocaine hydrochloride, using a well-known and very simple formula.

He was virtually caught in the act because although he was asleep when the police went inside the locked room, he was surrounded by the paraphernalia of drug manufacturing. All the equipment and ingredients needed to make crack cocaine were present and various quantities of this drug were either already packed into resealable bags ready for sale, or were drying out on paper towels after being processed, or were in what is described as a ‘cooking pot’, in the course of being manufactured.

Yet more cocaine in bags mixed with the sodium bicarbonate needed for turning cocaine hydrochloride into crack cocaine was present in that room. The 2nd defendant had already manufactured over half a million dollars worth and there was as much again which would have more than doubled this, using the raw materials waiting to be made into crack.

In the 2nd defendant’s case, the trafficking is made more serious by his manufacturing cocaine as well. The total narcotic content of the cocaine and cocaine hydrochloride found by the police had an overall weight of 830.46 grammes. Part of this amount was found in a powder containing 440.9 grammes of cocaine hydrochloride. It is apparent that this quantity was intended to be converted into crack cocaine.

The Government Chemist has indicated that this mixture would probably have made about 394 grammes of crack cocaine. I am prepared, therefore, to deal with this case on the basis that the crack cocaine to be trafficked would amount, in total, to 783.56 grammes. This is the addition of the crack cocaine already manufactured, namely, 389.56 grammes to the 394 grammes which would result from the manufacture of the remaining powder. In other words, this is about 46.9 grammes less than the narcotic weight of cocaine identified in the indictment.

The Court of Appeal in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, laid down certain guidelines for sentence where cocaine trafficking is concerned. Taking the narcotic content in this case of 783 grammes, this falls within the sentencing bracket of 20 to 23 years’ imprisonment for trafficking between 600 and 1,200 grammes of cocaine. From this, it is apparent that an appropriate starting point after trial ought normally to be 21 years’ imprisonment.

As I have already said, I can ignore for present purposes the previous convictions of the 1st defendant. But I am satisfied that his involvement in this case is far more than that of a mere courier who, no doubt, would have received 21 years. The 1st defendant was plainly an organiser and associate of the 2nd defendant and I propose, for that reason, to enhance his sentence.

Would you stand, Ansir Mahmood, would you stand, please. There is, as your counsel has rightly indicated, really no mitigation in your case which could affect sentence. This was a particularly grave offence and I have taken into account the role that you played in the matter, for which I propose to add a year’s imprisonment.

The sentence in your case is that you go to prison for 22 years.

I turn to the 2nd defendant. It is an aggravating factor that the 2nd defendant was actually the manufacturer of the crack cocaine in this case and to that extent, part of his sentence for the 2nd count should be consecutive to the 1st. I bear in mind what was said by the Chief Justice, Roberts CJ, in The Queen v Wong Chun Ping [1984] HKLR 247 at 257, and cited more recently, with approval, by Yeung J, who was then the Justice of Appeal, in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at 586. I simply quote what was said:

“We suggest, for the consideration of courts, that only in exceptional cases, for instance, if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than 10 years’ imprisonment on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs.”

The facts of this case are very much more serious than in Wong Chun Ping and I propose, in view of the large quantity of crack cocaine already manufactured and the quantity ready to be manufactured, to take, on Count 2, a starting point of 21 years’ imprisonment. The offence was certainly no less serious than the trafficking. As to this, the Court of Appeal, in Tse Kwan Wai, Barros & Others, which is CACC 43/2006, adopted what was said by that court in The Queen v Cheung Wai Kwong & Another [1997] 3 HKC 496:

“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker and he deserves a heavier sentence.”

So far as the trafficking is concerned, the 2nd defendant arrived in Hong Kong illegally in 2005, and in 2007, he was granted Form 8 status, after he was discovered in Hong Kong. By becoming a torture claimant seeking asylum, this gave him his freedom pending the outcome of his claim and it is that freedom which he has utterly abused. Following a 7-month sentence in 2009 for simple possession of dangerous drugs, on 18 January 2010, he was sentenced to a total of 2 years’ imprisonment for three separate offences of trafficking in dangerous drugs.

After his release from that sentence, on 27 April 2012, he received a 4-year sentence at this court for a further drug trafficking offence. He also has an immigration offence for which, on 19 September 2013, he was given a 13-month sentence. He was eventually released from prison in March 2015 and within six months after his release, he was found to be manufacturing and trafficking the cocaine for which he now has to be sentenced.

In HKSAR v Norena Gutierrez Cristhian Andres, CACC 319/2014, the Court of Appeal indicated a degree of enhancement of sentence for asylum seekers is justified in cases where the offence is serious:

“Punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner, rather he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong and at liberty pending the determination of his immigration claim.”

Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.

Similar sentiments were expressed more recently by the Court of Appeal in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, where the passages I have cited are set out, but the court went on to say this:

“It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this city.”

This merely confirms the views of the Court of Appeal which had been expressed earlier.

Muhammad Afzal, would you stand, please. You gave a wholly false account in your evidence when you tried to lay the blame on the 3rd defendant by accusing her of being the ringleader in this matter. You did so in an effort to remove all the blame from your friend, the 1st defendant, Ansir Mahmood. The jury saw straight through the falsity of your account when, in my view, they rightly and properly acquitted the 3rd defendant.

However, I am not dealing with you for perjury and I am not permitted to increase your sentence for the dreadful thing you tried to do by falsely accusing the 3rd defendant of being heavily involved in this matter when nothing could have been further from the truth.

On Count 1, the starting point after trial in your case for trafficking in this quantity of cocaine would, as I have said, normally be 21 years’ imprisonment. However, as with the 1st defendant, there is an abundance of evidence to demonstrate that your role in this is much greater than that of a mere courier who could have expected to receive 21 years. Both you and the 1st defendant were the organisers of what was taking place in that hotel. For that reason, your sentence will be enhanced by a year.

In addition, I will further enhance your sentence by a year on account of your appalling record for trafficking in dangerous drugs whilst you have been in Hong Kong. There will be further enhancement of your sentence by a year as a result of the abuse of the hospitality extended to you when you were allowed to remain at liberty in Hong Kong as a torture claimant.

For these last two factors I shall probably be criticised for not having enhanced your sentence by rather more but, in any event, the enhanced starting point for the trafficking offence will be 24 years’ imprisonment. That is the sentence you would have received after trial.

The manufacturing of cocaine in Count 2, for which I have already adopted, as I have said, 21 years’ imprisonment as a starting point, can only add to the seriousness of the trafficking. On each of these counts, you are entitled to receive a substantial discount to reflect the pleas of guilty that you have entered and other special circumstances on the papers which justify a measure of leniency.

So on Count 1, your sentence is 14 years and 4 months’ imprisonment.

On Count 2, your sentence is 12½ years. I would usually order that 2 years of the sentence on Count 2 should run consecutively to the sentence of Count 1 but having regard to totality, I will make only 1 year and 2 months consecutive on the 2nd count.

Your sentence is 15½ years’ imprisonment.