HKSAR v. Iqbal Qamar Bilal

DCCC 962/2018

[2019] HKDC 586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 962 OF 2018

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Reasons for Sentence

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1.The defendant pleaded guilty to one count of trafficking in a dangerous drug, namely, 5,092.81 grammes of cannabis resin. He was convicted accordingly.

The Prosecution Case

2.On 23 May 2018 at the Hong Kong International Airport, Customs Officer 12198 examined an inbound parcel sent from India to a person called Bilal Qamar Iqbal in Hong Kong. An address in Lai Chi Kok and the recipient’s phone number was written on the parcel. It was declared that the goods were “damru”. It transpired that the parcel contained 5,092.81 grammes of cannabis resin, with the estimated street value of HK$600,951.

3.On the following day, Customs Officer 15107 called the recipient’s phone number. The defendant answered the call and agreed to have the parcel delivered to him later on the day.

4.Later in the afternoon, the defendant asked the owner of the shop which was situated at G/F, No. 258 Lai Chi Kok Road to call and tell CO 15107 that the defendant would wait for the parcel outside the shop. The defendant stood outside the shop with a trolley.

5.At about 5:45 pm, CO 15107 arrived at the shop and called the recipient’s phone number again. The defendant answered the call. CO 15107 then approached the defendant. The defendant showed his recognizance paper upon request and told CO 15107 that he was to receive the parcel. The defendant also took out another mobile phone which showed the parcel number. The defendant then signed the delivery run sheet to acknowledge receipt of the parcel before he took the parcel. The defendant was arrested.

6.Upon body search, cash in the sum of HK$1,032 was found on the defendant. The defendant is a holder of a recognizance document issued by the Immigration Department.

Mitigation

7.Defence counsel prepared a two-page mitigation statement. It was said the defendant was born in 1992 in Pakistan and has received secondary level schooling there. The defendant came to Hong Kong in 2011 as an asylum seeker. The defendant got allowance to pay for his rent and had HK$1,200 food coupons and $200 cash per month.

8.The defendant had a clear record in Hong Kong. It was submitted that the defendant was persuaded by his acquaintance to act as an intermediary in the drugs operation. He was to be paid $200 for his role.

9.Defence counsel relied on the sentencing guideline as promulgated in the R v Tuen Shui-ming [1995] 2 HKC 798 and suggested that the starting point of the present offence can be in the region of 32 months. When asked, defence counsel has no submission relating to the fact that the defendant committed the present offence while he was on police bail in respect of another dangerous drugs case which would also be dealt with in the West Kowloon Magistracy today. Defence counsel also has no submission relating to the possible enhancement of sentence in light of the defendant’s status as a Form 8 recognizance holder.

Sentence

10.This case obviously attracts an international element as the parcel was sent from India and addressed to the defendant.  From the photo album (MFI-2), the cannabis resin was wrapped inside several damru which is a kind of drums or musical instrument. The quantity of the cannabis resin involved is 5,092.81 grammes.

11.The fact that the defendant committed the present offence while on police bail is an aggravating factor. On top of that, the defendant being a Form 8 recognizance holder, who was having the gratitude and humane treatments in Hong Kong, committed a criminal offence can be seen as another aggravating factor. 

12.In HKSAR v Singh Gursevak [2019] HKCA 179, the Court of Appeal mentioned that in some cases involving dangerous drugs, with the starting points ranging from 15 to 18 years’ imprisonment and the Form 8 holder can get an enhancement from 12 to 18 months.  The court further stated that:

“The contextual reality for Hong Kong in respect of Form 8 holders is that the number of Form 8 holders is many thousands and that the processing of their claims can take years, indeed many years, rather than months. During the period that they await the processing of their claim they are not permitted to work and exist on a limited welfare payment. Finally, it is the experience of the courts that an increasing number of Form 8 holders are being prosecuted for their involvement in a broad range of criminal activity that is committed by them in the time they at large in Hong Kong awaiting the processing of their claims.”

13.In the present case, the defendant aged 27 came to Hong Kong in 2011. In his antecedent statement, the defendant did not say he was a drug addict. Yet, the defendant had 2 previous records in December 2018 and for the offence of possession of a dangerous drug, he was sentenced to 2 months’ imprisonment.

14.Apart from the present offence, the defendant was also arrested in another dangerous drugs case on 7 May 2018, about 2 weeks before the present case. Apparently, the defendant is not remorseful. I am of the view that an enhancement of sentence is called for in light of the defendant’s status as a Form 8 holder.

15.After taking all factors into account, I would adopt a starting point of 30 months, not 32 months as submitted by the defence counsel. I will give one-third discount on sentence and reduce the sentence to 20 months. However, as said, I will enhance the sentence by 3 months. As such, I sentence the defendant to an imprisonment term of 23 months.