HKSAR v. Alam Wasim

HCCC 7/2018

[2018] HKCFI 1188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 7 OF 2018

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

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COURT:

The defendant pleaded guilty 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. 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 concerned, background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

Police officers noticed that the defendant, who was the only passenger in a taxi, did not alight from the taxi. Feeling suspicious, officers asked him to alight; he only did so after repeated demands. When the officer declared his police identity, the defendant pushed his hands but was soon put under control. In a plastic bag carried by the defendant, cocaine was found.

The defendant is now 30 years of age, he was born in India and had received primary education there. He had been employed as a mobile phone salesman, but since he came to Hong Kong in mid-2012 he has been unemployed. He had been living with his girlfriend in Hong Kong who gave birth to his son in 2017. The defendant has lodged a non-refoulement claim which is not yet finally decided. The defendant is not a first time offender; in 2015 for conviction of conspiracy to defraud he was sentenced to 3 months’ imprisonment. His conviction record has little impact on the sentence of the present case.

In mitigation, learned counsel for the defence, Mr Lo, informed the court that the defendant committed the offence as he was eager to earn quick money, as both his girlfriend and his infant child were not well and the child was hospitalised. He realised it was a foolish act. Accepting that it is an aggravating factor, as the defendant is a non-refoulement claimant, Mr Lo asked the court to be as lenient as possible.

The dangerous drug which the defendant trafficked in was 143.3 grammes of a solid containing 135.5 grammes of cocaine. The Court of Appeal heard in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that in the case of trafficking in cocaine the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is 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 that this is the first time the defendant commits a dangerous drug related offence, I do not see any ground to depart from the tariff. In my judgment, an initial starting point of 10 years is appropriate. I do not consider the previous conviction of the defendant amounts to an aggravating feature in the light that it was for an offence of different nature, and as we have heard about the sentence, it was unlikely to be a serious matter.

The defendant is staying in Hong Kong on reconnaissance 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 Gutierrez Cristhian Andres CACC 319/2014, having regard to submission made by Mr Lo, I’m of the view that the starting point should be enhanced by 12 months. From the ultimate starting point of 11 years, the defendant is entitled to a one-third discount as he had pleaded guilty at the earliest opportunity. Having considered the whole circumstances, including what learned counsel said on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.

By reason of the matters aforesaid, you are sentenced to an imprisonment term of 7 years and 4 months.