HKSAR v. Islam S M Majharul

HCCC 379/2018

[2019] HKCFI 626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 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 has pleaded guilty in the Magistrate’s Court to one count of trafficking in a dangerous drug, namely 82.90 grammes of a mixture containing 51.70 grammes of cocaine and 2,500 tablets containing 479.26 grammes of 3,4‑methylenedioxymethamphetamine.

Now, the Summary of Facts are not unusual given these times, and police officers had laid ambush at the rooftop of a building in Un Chau Street, Sham Shui Po. They managed to gain entry to premises on a search warrant and upon entering Room 5 on that rooftop, they searched and found the drugs, which is the subject matter of the charge, inside a drawer in the room. Also in the room on a bed was a letter from the Immigration Department addressed to the defendant as to his application for non-refoulement.

At about 7.15 pm that evening, the defendant appeared and admitted that he was the occupier of Room 5 and on the defendant’s person were found keys which opened not only the room door of Room 5 but also the drawer which contained the drugs. And also he had on him a Hong Kong ID card which confirmed his name on the immigration letter.

Defendant was arrested for trafficking in dangerous drugs and subsequently interviewed in the presence of a Bangladesh interpreter. Under caution, he claimed that he was induced by a man called Ali who promised to give him money and that he had to do whatever he wanted him to do, and so Ali then gave him two plastic bags outside Chungking Mansion and asked him to wait for his call and keep the drugs in his room. He only realized they were dangerous drugs when he came back to his room and opened the two plastic bags. The defendant said he was the sole occupant of Room 5 and no one else had the keys to the room except him.

The estimated market retail value of the cocaine and “Ecstasy” were $81,905 and $192,500 respectively.

The defendant has a clear record and came to Hong Kong in 2013. He is aged 28 and apart from his early plea, there is not any mitigating factors.

According to the guidelines, as correctly identified by Mr Bullett, the amount of cocaine would normally, following the guidelines in Lau Tak Ming [1990] 2 HKLR 370, would give us a starting point of about 8 years and as far as the “Ecstasy” is concerned, following the guidelines in Hii Siew Cheng [2009] 1 HKLRD 1, the amount there would garner a starting point of about 10 and a half years. However, because the two drugs were found together, I intend to adopt the combined approach.

Now, combining the two drugs together would give us 530.96 grammes. If I was following -- combining it under the “Ecstasy” guidelines in Hii Siew Cheng, it would give me a starting point of 11 years and 3 months and if I followed, if I combined it into the cocaine, the starting point would be about 17 and a half years. So in the circumstances that the amount of the “Ecstasy” is much larger than the cocaine, I would therefore follow -- make it all into the “Ecstasy” and then increase it by 2 years for the fact that part of that is for a more serious drug of cocaine, and so the 11 years 3 months plus the 2 years for the fact of cocaine would give us 13 years and 3 months.

Now, there is also another factor which is an aggravating factor and that is the fact that the defendant is a Form 8 holder. The Court of Appeal has in cases, the latest being HKSAR v Junaid Ahmed [2018] HKCU 939, had followed the case of HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 where Macrae JA at page 212 had said that:

“Where someone in the position of the 2nd appellant 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.”

So it is quite clear that for Form 8 holders, they are abusing the hospitality of Hong Kong in giving them the freedom of movement and, however, abusing this freedom by committing crimes like drug trafficking, and so in the case of HKSAR v Ali Saif [2018] HKCA 358, the Court of Appeal again following a plea of guilty to drug trafficking considered the case of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 where in respect of the trafficking in 55.88 grammes of cocaine narcotic, the court approved an enhancement of 1 year’s imprisonment for an applicant in the same position as the one as Ali Saif.

The Court of Appeal recognized that there cannot be any -- lay down any guidelines for enhancement for each case is different and the Court of Appeal went on -- Macrae VP went on to say in paragraph 17 of the judgment that:

“However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizen and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognisance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.”

And I would echo the words of the Vice-President in this case, and so I would adopt a 1-year enhancement for the aggravating factor of being a Form 8 holder. So the 13 years 3 months would be increased by 1 year to 14 years 3 months.

And so I will reduce the sentence by one-third, giving the defendant a discount for his plea and which would give us, giving one-third off, which would give us 9 years and 6 months.

So the defendant will go to prison for 9 years and 6 months.