HKSAR v. Ahmed Shahnwaz

HCCC 223/2019

[2021] HKCFI 786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 223 OF 2019

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

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Introduction

COURT: The defendant is convicted after trial of one count of trafficking in a dangerous drug. The dangerous drug concerned was 139.1 grammes of a solid containing 136.9 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The case concerned three South Asian males who were intercepted by the police and one of them was the defendant. The evidence is that the three of them were seen alighting from a taxi together at about 9.33 pm on 9 August 2018 outside Hung Yan House, Hung Fuk Estate in Tin Shui Wai. After that, the defendant and one other, namely AP2, Bashir, walked towards the main entrance of Hung Yan House, whilst the third male, namely AP3, Rai, walked in the direction of the rear entrance. Subsequently the police intercepted the defendant and Bashir and they found in the plastic bag which the defendant was carrying at the time the ‘Ice’ which was the subject matter of the charge.

Antecedent

The defendant is an asylum seeker from India and is now aged 37. He has been staying in Hong Kong since 2009 and has a clear record, both in Hong Kong and in India.

Sentence

The sentencing tariff for trafficking in ‘Ice’ can be found in HKSAR v Tam Yi Chun, where it is provided that trafficking in 70 to 300 grammes of ‘Ice’ narcotic would attract a sentence of between 11 to 15 years’ imprisonment after trial. Thus, trafficking in 136.9 grammes of ‘Ice’ narcotic would attract an arithmetical starting point of 12 years and two months’ imprisonment.

By the recent judgment of the Court of Appeal in HKSAR v Herry Jane Yusuph, it is now clearly established that an arithmetical starting point, which is based on the quantity of the narcotic concerned, is only intended for low-level traffickers who play the role of couriers or storekeepers. In the present case, there is no evidence before the court that the defendant was other than a courier. As such, I adopt the starting point of 12 years and 2 months’ imprisonment for the charge.

However, the fact that the defendant was at the time of the commission of the offence a Form 8 reconnaissance holder and a non-refoulement claimant, who was entitled to remain at liberty in the community, but expected to be law abiding while his claim was being processed is an aggravating factor. See HKSAR v Shah Syed Arif, HKSAR v Mahabul Alam Khan and HKSAR v Islam Shafiqul. For this, I add 1 year on top of the starting point, making an imprisonment term of 13 years and 2 months.

Mr Pannu has said all he can for the defendant in mitigation. However, there is no meaningful mitigation factor which can reduce his sentence. Therefore, the defendant is sentenced to 13 years and 2 months’ imprisonment.