HKSAR v. Ali Qasim

HCCC 453/2017

[2019] HKCFI 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 453 OF 2017

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

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COURT:

Defendant, the jury have found you guilty after trial of trafficking in dangerous drugs that is, namely, 1.47 kilogrammes of a solid containing 1.09 kilogrammes of cocaine.

You are found to have committed this offence on 23 March 2017 at the Yuen Long Post Office in the New Territories, Hong Kong. On that date, you went to the post office in Yuen Long to collect a parcel. By reason of the jury’s finding, you had knowledge that that parcel contained dangerous drugs. You pretended to be the recipient of that parcel and you produce to the post office lady a forged Hong Kong Identity Card. The customs officers then came to verify with you that you were the recipient of the parcel, that is Mr Mohanad Imran. You told him a lie that you were and the customs officer then gave you the parcel. When you left the post office you were arrested and intercepted.

On 6 March, some two weeks before you collected the parcel. This parcel which originated from Brazil, was examined by an officer by the customs department. Inside the parcel was an engine block or cylinder. A hole was drilled into the engine block and white powder came out of it. A drug test was conducted on it and it showed a positive reaction to cocaine. That parcel was resealed after examination so that it looked like the original unopened parcel. When you went to the post office on 23 August, customs officers were already there waiting for a recipient to receive this parcel. The amount of drugs found in this engine block was 1009 grammes of cocaine. It is an extremely large amount.

You are 33 years of age. You entered Hong Kong illegally and are presently in Hong Kong as a Form 8 recognisance holder waiting for your claim to be decided on whether you should be sent back to Pakistan.

You committed this present offence as a Form 8 holder and it has been said by the Court of Appeal in Hong Kong that for people like yourself, Form 8 holders who commit offences in Hong Kong, that is an aggravating factor to which your sentence should be enhanced because you 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. Hong Kong has offered you the privilege of remaining at liberty while your claim is being considered and you abused that liberty by committing this crime. These serious crimes which are committed by torture claimants are recognized by the courts in Hong Kong to the extent that the sentence will be enhanced. Trafficking in this very large quantity of drugs is indeed a very serious crime.

The tariff guidelines for trafficking in cocaine is laid down by the Court of Appeal in Abdallah. The guidelines for trafficking in of between 600 and 1,200 grammes is a starting point of between 20 and 23 years’ imprisonment. You were trafficking in 1,009 grammes of cocaine. Taking the tariff guidelines, that would make a starting point of 22 years’ imprisonment.

Regarding any enhancement to that starting point, Mr Whitehouse, your counsel, has urged me not to impose an enhancement for the international element. That generally, as laid down in Abdallah, is for drugs which are imported into Hong Kong. Mr Whitehouse’s argument is that you did not import the drugs into Hong Kong. You just went to collect the drugs from the post office. These drugs were already in Hong Kong. These facts are almost on all fours with the facts in HKSAR v Darlington. I have not said the other two names because they are quite difficult to pronounce, but that is CACC 78/2015, where the Court of Appeal endorsed the Court of First Instance enhancement to sentence on the applicant who had done exactly as you have done, that is gone to a post office to collect a parcel which had arrived from Brazil.

The Court of Appeal upheld the international element by enhancing the sentence for collecting a parcel from Brazil. In that instance, I apply the Abdallah guidelines for the international element and for importing drugs over 1,000 grammes, the Court in Abdallah said the enhancement should be 2 years’ imprisonment. Your sentence would therefore be one of 24 years’ imprisonment.

Turning now to the fact that you are a torture claimant committing a very serious offence in Hong Kong. In a very recent by the Court of Appeal handed down in June 2018, HKSAR v Joof Saihou, CACC 252/2017, the Court of Appeal there considered the enhancement factor for torture claimants.

At paragraph 30, Zervos J, as he then was, briefly mentioned the enhancements given in other authorities noting that in drug trafficking cases, the greater the quantity of narcotic content, the greater the enhancement. The judge there went on to consider various quantities of drugs and the enhancement terms of imprisonment. He concluded in HKSAR v Dramane Mouhamed Saiti, CACC 191/2016 (14 June 2018, unreported) where the court said that applicant could have his sentence enhanced by as much as 18 months’ imprisonment for trafficking in 440 grammes of cocaine narcotic. I refer in that case to the judgment of Macrae VP where Macrae VP says that at paragraph 35:

“As Zervos J has said, comparisons with sentences passed in other cases can sometimes be misleading because the circumstances of the offence and the offender will be different as between different cases.”

He referred to the case of Fitri, where the court in that case enhanced the sentence by 12 months for 454.3 grammes of cocaine which the Court of Appeal did not criticize. Macrae VP said at paragraph 35, in that case, the court was presented with an applicant who had trafficked in 454.13 grammes of cocaine narcotic, however unusually she faced two significant aggravating features on the facts of her case.

First, she had facilitated the importation of drugs into Hong Kong from Brazil and had her sentence enhanced by 1 year for the so-called “International Factor”. Secondly, she was also a Form 8 recognisance holder and had her sentence enhanced by 1 year for that factor as well. Paragraph 36, The applicant’s sentence had therefore been enhanced by the sentencing judge by 2 years for both aggravating features and the Court of Appeal did not think a greater enhancement was appropriate, particularly when it was dealing with just under half a kilogram of cocaine narcotic.

Defendant, you have had your sentence enhanced by a factor of 2 years for the international element. Although the court says that the enhancement for trafficking in 440 grammes of cocaine can be enhanced as much as 18 months, I do not think in this case it is appropriate as your sentence is already very heavy. Sentencing is a discretion of which the court has and looking at the totality of sentence in this case, I consider that an enhancement of sentence of 1 year is appropriate for you committing this crime as a Form 8 recognisance holder.

In the circumstances, defendant, you shall be sentenced to 25 years’ imprisonment.