HKSAR v. Mohammed Imran

HCCC 213/2017

[2019] HKCFI 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 213 OF 2017

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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.

It was a stop-and-search case. The facts may be summarized as follows:

When police officers found the defendant suspicious and approached him, the defendant tried to flee but was subdued. Upon search, officers found in a pocket of the jeans, which the defendant was wearing, a plastic bag containing seven resealable plastic bags of cocaine. The total quantity was 168 grammes of a solid containing 132 grammes of cocaine.

Under caution, the defendant admitted that he had been given the item five days ago for him to deliver to someone.

The defendant is now 28 years of age, he was born in India and had received secondary education there up to level 3. In India, he was in the trade of selling mobile phones. He came to Hong Kong and overstayed before he sought asylum here. He was unemployed in Hong Kong and did not have any criminal conviction record here.

In mitigation, learned counsel for the defence, Mr Beel, stressed that the defendant pleaded guilty at the earliest opportunity. He informed the court that the defendant was exploited and was tempted only with a reward of $500 as a courier of the drug.

The dangerous drug which the defendant trafficked in was cocaine. The Court of Appeal held in AG 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 this is the first time the defendant commits a dangerous-drug-related offence, I do not see any grounds to depart from the tariff. In my judgment, an initial starting point of 10 years is appropriate.

The defendant was staying in Hong Kong on recognisance since he has lodged a non-refoulement claim. Having regard to HKSAR v Shah Syed Arif, CACC 298/2015, HKSAR v Norena Cristhian Andres, CACC 319/2014 and HKSAR v Ali Saif CACC 369/2017(309/2017?) and having regard to submission made by Mr Beel, I am 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 for the guilty plea which he tendered at the earliest opportunity.

Having considered the whole circumstances, including what learned counsel said on the defendant’s behalf and everything the court had been told, I am prepared to give the defendant a further discount of 4 months.

So, defendant, please stand up. For the reasons I have said, I sentence you to an imprisonment term of 7 years.