HKSAR v. Joseph Nabeel

HCCC 146/2017

[2018] HKCFI 1518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 146 OF 2017

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

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COURT:

Defendant, you have been found guilty after trial by a jury of the offence of trafficking in dangerous drugs. You were found to have unlawfully trafficked in the drugs of “Ice”, cocaine, nimetazepam and traces of tetrahydrocannabinol on 3 August 2016 at Room 3576, Flat A4, 3rd Floor, Block A, Chungking Mansions.

Defendant, you are 37 years of age. You were born in Pakistan and came to Hong Kong in 2010. You came to Hong Kong and made an application for non-refoulement, that is, for your non-return to Pakistan on the basis that you would be tortured if you returned to Pakistan. You were therefore in Hong Kong since 2010 as a torture claimant.

I have been informed by your counsel previously that your torture claim has been resolved. You were refused your status not to be returned to Pakistan. In any event, it would appear that at the time you committed this offence you were a torture claimant applicant.

Prior to you coming to Hong Kong, I am informed by Mr Beel that you were working as a delivery worker. And apart from yourself, I have heard that all your siblings are well-educated university graduates and you are not.

Since your time you have been in Hong Kong, you have three previous convictions. In 2012, you were convicted of possession of dangerous drugs to which you were sentenced to 3 months’ imprisonment. In 2013, you were convicted of the same or similar offence as this one today where you were convicted of trafficking in dangerous drugs and you were sentenced to 3 years and 4 months’ imprisonment. Soon after your arrest for this offence, you were convicted and sentenced for illegal remaining in Hong Kong and sentenced to 15 months’ imprisonment.

As Mr Beel has rightly pointed out, trafficking in drugs in Hong Kong is a very serious offence and immediate terms of imprisonment is imposed. This would not be new to you as you have already been sentenced for a similar offence.

You were trafficking in four types of drugs. That is, “Ice”, cocaine, nimetazepam and a derivative of cannabinol. The Court of Appeal have laid down tariffs in sentencing for trafficking in dangerous drugs. The guideline case for trafficking in “Ice” is that of Tam Yi Chun and the guideline case for that of cocaine is that of Lau Tak Ming.

For the quantity of “Ice” that you were trafficking in there was a total quantity of 17.63 grammes, and in following the guideline in Tam Yi Chun, that would attract a sentence of between 7 and 10 years’ imprisonment. You have been convicted after trial and for that quantity, Defendant, I take a starting point of 7 years and 3 months’ imprisonment.

For the quantity of cocaine, you had an amount of 4.26 grammes of cocaine. In following the case of Lau Tak Ming, the guideline for zero up to 10 grammes is that of between 2 and 5 years’ imprisonment. If you had been convicted of trafficking in cocaine alone for the quantity of 4.26 grammes, the appropriate starting point would be one of 3 years and 3 months’ imprisonment.

The other amounts of nimetazepam and cannabinol are very small in amount and for the purposes of sentencing I shall not include this in the amount of drugs.

In sentencing for the two types of drug, I take the combined approach and the conversion approach. In this case, “Ice” is the more serious drug, therefore I will convert the amount of cocaine to that of “Ice”. In converting the amount of cocaine to the equivalent amount in “Ice” would be approximately 1 gramme. Therefore, I shall sentence on the total amount of 18.63 grammes of “Ice”. Following Tam Yi Chun, that would attract a sentence of 7 years and 6 months’ imprisonment.

Defendant, that is the starting point. There is nothing in your background to reduce that starting point. Conversely, there are two aggravating factors such as to warrant an enhancement to the starting point. The first aggravating factor is the fact that this is your second offence for trafficking in dangerous drugs, as you have previously been convicted for trafficking, and the other is the fact that you were a holder of a Form 8 recognizance and you were a torture claimant.

The Court of Appeal has stated clearly that for Form 8 holders who commit criminal offences, such as trafficking in dangerous drugs, is a serious detrimental effect on the Hong Kong community at large and can expect an upward adjustment of their sentence. As Macrae J said in HKSAR v Sandagdorj Altankhuyag and Another, “When someone in the position of” -- as a torture claimant:

“...deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

In essence, Defendant, you have committed the present offence and have abused the hospitality and liberty offered by the Hong Kong government and your crime goes to the very essence of Hong Kong’s integrity in the international community.

You have been given freedom in Hong Kong and you have not lived a law-abiding life while you awaited the processing of your claim.

Defendant, in regard to these two aggravating factors, I consider an enhancement of 9 months to the starting point to be appropriate. Therefore, Defendant, you shall be sentenced to 8 years and 3 months’ imprisonment.