HKSAR v. Shaikh Afzal

HCCC 359/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2017

-----------------

------------------

------------------------------------------

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

------------------------------------------

COURT:

The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The defendant was seen hurrying out of a building. He was stopped and searched by police officers. He produced a Form 8 and in his right trousers pocket was a piece of tissue paper containing one resealable plastic bag containing 14.2 grammes of a solid containing 14 grammes of ‘Ice’. Under caution, he said he was given $200 to help to deliver the drugs. Later, he changed to say that the drugs were purchased for his own use and at the time of the arrest, he was found to be in possession of two mobile phones and cash HK$380.

He now admits that he was unlawfully trafficking in those drugs.

The defendant is now aged 30. He has a clear record. By way of mitigation, counsel said that at the material time, the defendant was short of money and he was asked by someone to deliver the drugs for a reward. So he foolishly took that offer and committed the present offence. He is remorseful and pleaded guilty at the earliest possible instance. Counsel asked me to adopt a low starting point and low enhancement.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel on his behalf. Applying the tariff in Tam Yi Chun, trafficking between 10 to 70 grammes of ‘Ice’ attracts a starting point between 7 to 11 years. The present case concerns 14 grammes of ‘Ice’ and I adopt a starting point of 87 months. I then refer to the case of Mahabul Alam Khan where the Court of Appeal said that the Form 8 holder and non-refoulement claimant at the time of the trafficking offence was a significant factor in aggravation. In that case, the Court of Appeal considered that a 15 months’ enhancement was appropriate for starting point of 12 years and 7 months, ie, roughly a 10 per cent enhancement. I consider an enhancement of 6 months is appropriate in the present case.

Accordingly, the appropriate sentence after trial would be 93 months. The defendant is entitled to the full one-third discount for his plea and he is sentenced to 62 months’ imprisonment.