HKSAR v. Mohamed Hussain Mohamed Imran and Another

HCCC 55/2017

[2018] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 55 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The case was about a parcel from Panama which had in it 410 grammes of a powder containing 261 grammes of cocaine. The charge is a single joint charge of trafficking in a dangerous drug with two defendants, D1 and D2.

Both of the defendants were arrested on 29 August 2016 by customs officers laying in ambush, just after D1 had collected a parcel from Sham Shui Po Post Office. D1 pleaded guilty and gave evidence for the prosecution. Therefore, only D2 stood trial and he was convicted by the unanimous verdict of the jury.

D1 was the major prosecution witness at D2's trial. In a nutshell, the prosecution's case is that it was D2 who recruited D1 to collect the parcel in question and asked D1 to prepare the false copied passport (P10) and false electricity bill (P11) which D1 later used for the purpose of collecting the parcel. D2 promised D1 the reward of HKD$2,000 and said that the parcel contained cocaine. Afterwards, D2 forwarded to D1 two text messages which contained a name and an address which matched the information of the addressee on the parcel. D1 used the information D2 forwarded to him to make the false copy passport and false electricity bill. D1 had been to the post office twice. On the first occasion on 26 August 2016, he was told that the parcel had not yet arrived. There is evidence that D2 was also presence inside the post office on that occasion. The second occasion was on 29 August 2016 when D1 eventually collected the parcel from the post office and at that time, D2 was waiting outside. Thus, based on the evidence which the jury has, by their verdict obviously accepted, the offence was a joint enterprise between the two also a third person (who was referred to as the “black man" during the trial) and who, there is evidence to show, was the person behind and the origin of the two text messages mentioned above.

Background of the defendants

D1, he is a Sri Lankan and is now aged 32. He attained a Diploma in Computer Hardware Engineering in Sri Lanka. He came to Hong Kong on 9 August 2005 and was permitted to stay as a visitor for 30 days. However, he had overstayed since 9 September 2005. On 19 April 2012, he was sentenced to one-month imprisonment for breach of condition of stay.

Concerning D1's immigration status in Hong Kong, on 17 May 2009, he lodged a non-refoulement claim. He remained in Hong Kong on the strength of a Form 8. Later, the Immigration Department received a letter from him dated 18 July 2016 stating his intention to withdraw his claim. On 22 July 2016, the Immigration Department classified his case as one which required no further action.

D2. D2 is also Sri Lankan and is now aged 39. He was educated up to the General Certificate of Education level in Sri Lanka. On 15 August 2007, he was arrested by police for being an illegal immigrant. On 23 September 2013, he claimed non-refoulement protection, but was informed on 6 December 2013 by Immigration that his torture claim was not substantiated. On 17 December 2013, he lodged an appeal which is now being processed by the Torture Claims Appeal Board. He remained in Hong Kong on the strength of a Form 8. He is married and prior to his arrest, he lived with his wife in Yuen Long.

Starting point

He is trite that, for the sake of consistency in sentencing, the starting point for the offence of trafficking depends mainly on the quantity of the narcotic concerned. Applying the tariff laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370, which by Attorney-General v Pedro Nel Rojas [1999] 2 HKCLR 69, is also applicable to trafficking in cocaine, trafficking in 261 grammes of cocaine on a strict arithmetic approach, would attract a starting point of 12 years and 11 months. In the present case, although the roles played by D1 and D2 were different, I consider that their respective culpability in the joint plan as similar. Therefore, the starting point I adopt for each of the defendants is 12 years and 11 months' imprisonment.

I take into account that at the time of the offence, both D1 and D2 were non-refoulement claimants staying in Hong Kong on the strength of the Form 8, although, D1 had by that time already applied for the withdrawal of his torture claim and sought to return to Sri Lanka. The fact that the defendants were non-refoulement claimants at the time of the offence is, according to HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, is an aggravating factor.

Mr McGuinniety, counsel for D1, tries and submits that his client, by virtue of the withdrawal of his non-refoulement claim, should no longer be treated as a Form 8 holder for sentencing purpose. As to this, I beg to differ. I note also that in the recent case of HKSAR v Mahabul Alam Khan CACC 116 of 2016, dated 8 September 2017, unreported, at paragraphs 29 and 30, the Court of Appeal repeated the principle articulated in Shah Syed Arif and other previous decisions, that a non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong's reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence. In my humble view, that sentencing principle is, with respect, just as relevant to the case of D1 as that of D2, even though D1 had withdrawn his torture claim at the time of his arrest. The blunt fact is that D1 committed a serious offence which strikes at the social fabric and tarnishes the reputation of the very place which extended hospitality to him by permitting him to stay and to remain in liberty.

Going back to the case of Mahabul Alam Khan, the Court of Appeal in that case was also concerned with the sentence imposed on the applicant who was a Form 8 holder and non-refoulement claimant in relation to trafficking in 238.57 grammes of cocaine narcotic. The court enhanced the applicant's sentence by 15 months for the factor of being a non-refoulement claimant at the time of the offence. In the present case, the narcotic is, as I have said 261 grammes of cocaine.

Guided by the above cases, I enhance the sentence of each of the defendants by 15 months. This brings the sentence of each of the defendants to 14 years and 2 months' imprisonment.

Sentence

As regards D1, counsel confirms that he first indicated his intention to plead guilty and to assist the prosecution in his first non-prejudicial statement dated 30 March 2017. That occurred after the committal on 20 February 2017 but before the fixing of trial dates on 3 April 2017. In this regard, I am mindful of the change of the practice of the courts in relation to discount to be given to defendants who only indicate a guilty plea after committal, as stated in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the judgment of which was handed down on 2 September 2016. I note, however, that Ngo Van Nam does not address the situation where the accused person who pleaded guilty after committal also assisted the prosecution by giving evidence against his co-accused. On the other hand, the established practice of the courts has been to grant a discount of 50 per cent to such a pleaded defendant who had given truthful and material evidence for the prosecution: see the Court of Final Appeal in Z v HKSAR [2007] 10 HKCFAR 183. I note also that although Z v HKSAR was referred to in Ngo Van Nam, the Court of Appeal does not seem to have indicated any changes to the aforesaid practice. In the present case, D1 did give truthful and material evidence at D2's trial. I also take into account the mitigation letter written by D1 showing that he is truly remorseful of what he did by yielding to the temptation from D2. I also take into account that D1 has contributed to the worthy campaign of Father John Wotherspoon by writing an article warning people like him from falling into the trap of trafficking. Therefore, I will temper justice with mercy and err on the side of caution by adopting what may appear as a bit overgenerous approach by giving D1 an overall 50 per cent discount for his plea and giving evidence. Therefore, D1's sentence is reduced to an imprisonment term of 7 years and 1 month.

As regards D2, I can see no valid reasons for reducing his sentence. I note that Mr Stephenson, counsel for D2, doing what he can, is unable to advance any either. D2 is sentenced to an imprisonment term of 14 years and 2 months.