HKSAR v. Ali Shakir and Another

HCCC 68/2021

[2021] HKCFI 2055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 68 OF 2021

________________________

BETWEEN

________________________

Before:  Deputy High Court Judge D Yau in Court

Date of Hearing:  9 July 2021

Date of Reasons for Sentence:  9 July 2021

________________________

REASONS FOR SENTENCE

________________________

1.The defendants pleaded guilty to their respective charges before a magistrate and was committed to the Court of First Instance for sentence.

Summary of facts

2.D2 arrived in Hong Kong from Belgrade, Serbia via Abu Dhabi on the morning of 14 March 2019.  He checked into Kimberley Hotel in Tsim Sha Tsui (“TST”)  at around 11am.  At 2pm, he visited the Midland Realty office on Austin Road and left with two of their staff and visited Victoria Tower 1 (“Tower 1”)  and 2 in TST.

3.It was later revealed that D2 had rented a flat on the 12^th floor of Tower 1 via Midland Realty.

4.On 21 March, D2 left Hong Kong via High Speed Rail.

5.On 17 April, D2 was seen bringing a black backpack and a black suitcase to 12^th floor of Tower 1.

6.On 22 April, D1 entered Hong Kong and checked into Room 927 of Novotel in Yau Ma Tei (“Novotel”).

7.On 23 April, D2 brought another black backpack and a purple suitcase to Tower 1.

8.On 24 April, D2 left Tower 1 with a black backpack and a black suitcase at 08:40 am.

9.D1 and D2 met up outside the main entrance of Novotel at 09:03am.  D2 handed over the backpack and suitcase to D1 and then left.

10.D1 brought the backpack and suitcase back to Room 927 of Novotel at 09:06am.  He left Novotel without carrying any baggage at 12:13pm.  D1 went to the Rimowa shop in TST and bought a dark colored suitcase using a credit card. He returned to Novotel with it at 1:09pm.  D1 left Novotel at 7:11pm that evening without carrying any baggage.

11.Meanwhile, D2 was seen returning to 12^th floor of Tower 1 with a black backpack and a black suitcase at 12:35pm on 24 April.  D2 was then seen leaving Tower 1 with a black backpack, a blue suitcase, and a purple suitcase at 4:45pm.  D2 went to Novotel, the hotel that D1 had checked in, at 5:15pm and left at 5:25pm, carrying the same three pieces of baggage.

12.At 5:45pm, D2 rented and entered Room 528 of Eaton Hotel with the said three pieces of baggage.  D2 left Eaton at 5:53pm without them, suggesting that he had left them in the room.

13.At 7:35pm, D1 and D2 met up in Jordon and they went up to 5^th floor of Eaton.  They left Eaton at 7:58pm, with D1 carrying a blue suitcase and D2 a black backpack and a purple suitcase.

14.They arrived at Novotel together at 8:02pm.  When there, D2 passed the purple suitcase he was carrying to D1 and then left.  D1 carried both the blue suitcase and the purple suitcase to a room on the 9^th floor of Novotel.

15.On the following morning, 25 April, at 6:58am, D2 was seen leaving Tower 1 with a black backpack and a black suitcase.  D2 was later seen to return to Tower 1 carrying a black backpack and a black suitcase to the 12^th floor, at 12:49pm.

16.Later on at 10:30am, D1 bought another suitcase from a Rimowa shop, this time from the Central branch.  He then boarded a private vehicle (registration plate TS 684)  and brought the new suitcase back to the 9^th floor of Novotel.  About half an hour later, D1 left Novotel with a similar looking suitcase and went to To Kwa Wan in a different private vehicle (NU 6806).  When there, he entered 96-98 Ma Tau Wai Road building with the suitcase and met up with a man.  D1 left the Ma Tau Wai building without carrying any suitcase at 12:30pm, suggesting that he had left it there.

17.Between 12:55 and 1:10pm, D1 bought two more suitcases at the Rimowa shop in TST after being taken there by a private vehicle (NU 6806).  A different private vehicle (LS 361)  then took D1 back to the Ma Tau Wai Road building at 1:25pm, and D1 entered the building with the two new suitcases.  D1 left the building two hours later at 3:25pm without the suitcases, and was driven back to Novotel by yet another different vehicle (UP 6598).

18.Between 4:50 and 4:55pm, D1 and D2 were seen entering Eaton Hotel, going to the 5^th floor.  Neither of them was carrying any baggage.

19.They left Eaton about five minutes later, with D1 carrying a black suitcase and a backpack, and D2 carrying a backpack.

20.D1 went to the Ma Tau Wai building while D2 went to Tower 1.

21.D1 was seen going back to Novotel at 6pm without carrying any baggage.

22.D2 left Tower 1 with a suitcase and a backpack at around 7pm.  D2 brought them up to 5^th floor of Eaton at around 7:10pm.  He left Eaton at 7:36pm without any baggage.

23.Meanwhile, D1 left Novotel at 7:57 without any baggage.

24.D1 and D2 met up at Eaton at around 8pm and went up to the 5^th floor together.  They left about 10 minutes later.  D1 was carrying a suitcase and a backpack and he boarded a private vehicle (GT 2833), while D2 walked towards Tower 1.

25.At 8:27pm, D1 got out of the vehicle at the junction of Ma Tau Wai Road and Ching Chau Street, carrying the suitcase and backpack.  He was then intercepted by Customs Officers who were outside the Ma Tau Wai building.

Count 1 narcotics

26.Upon search, the backpack that D1 was carrying contained 10 block shaped packets with adhesive tape and plastic wrappings.  They contained a total of 9.984 kg of a solid, which contained 8.283 kg of cocaine.

27.Using keys found on D1, Customs officers entered the Ma Tau Wai building and the suitcase was searched there.

28.Upon search, the suitcase was found to have 37 packets similar to those found inside the said backpack, containing a total of 36.973 kg of a solid containing 30.271 kg of cocaine.  The cocaine found inside the backpack and suitcase are together the subject matter of count 1, faced by D1 and D2 jointly.

Count 2 narcotics

29.D1 was brought up to 10^th floor of the Ma Tau Wai building.  The passcode for entry was found on the label of a key found on D1.  With another key found on D1, officers entered Room A.

30.Investigation conducted later on showed that, on 24 April, D1 used his Australian passport to rent the room for a period of three months at a monthly rental of HK$7,500.

31.Upon search of Room A, a dark green Rimowa suitcase was found and was opened with passcode of “000”, which was the same used in the earlier suitcase.  Inside this suitcase were another 45 block shaped packets containing a total of 44.974 kg of a solid, which contained 37.12 kg of cocaine.  This is the subject matter of count 2.

Count 3 narcotics

32.D1 was brought to Room 927 of Novotel.  Investigation later on showed that D1 rented Room 927 for the period 22 to 29 April.

33.Officers entered the room with a room key found on D1.  Two dark green Rimowa suitcases were found inside the room.  They were locked but officers opened them using the passcode “000”.

34.Inside one of them were 50 block shaped packets containing a total of 49.945 kg of a solid with 43.079 kg of cocaine; and the other 58 similar packets containing a total of 57.931 kg of a solid with 49.227 kg of cocaine.  This total of 92.306 kg form the subject matter of count 3.

Count 4 narcotics

35.At around the same time that D1 was intercepted, Customs officers also stopped D2 outside Canton Road Playground.  D2 was brought to Flat A on the 12^th floor of Victoria Tower 1.  Later investigation suggested that D2 was the person who rented the flat via Midland Realty, using a passport of someone named Domek Marijo.

36.A locked suitcase was found and D2 provided the passcode of “0000” which opened it.  Inside were 20 block shaped packets containing a total of 19.973 kg of a solid with 16.708 kg of cocaine.  D2 said a man promised him US$4,000 for him to carry them to the flat.

37.D2 was also brought to Room 528 of Eaton but nothing suspicious was found there.  Staff of the hotel confirmed that D2 rented Room 528 on 24 April for one night using a passport in D2’s own name.

38.The estimated value of the cocaine seized in counts 1 to 3 is HK$219,188,279; and that of those in count 4 is $29,589,381.  The combined value is $248,777,660.

39.D1 and D2, by their admission to the summary of facts, accepted and admitted that at the material time, they were jointly in possession of the cocaine in counts 1, 2 and 3 for the purpose of unlawful trafficking.

40.D2, by his admission to the summary of facts, accepted and admitted that at the material time, he was in possession of the cocaine in count 4 for the purpose of unlawful trafficking.

Previous convictions

41.Both defendants are of clear record in Hong Kong.

D1’s background and mitigation

42.D1 was born in Afghanistan in June 1995 and is the holder of an Australian passport.  He is 26 years old and single.  He and his family moved to Sydney, Australia as asylum seekers in around 2010 to escape civil conflict in Afghanistan.

43.D1’s father continued his occupation as a painter while his mother looked after the family.  The defendant is the second of six children.  The defendant has no previous criminal convictions anywhere in the world.

44.D1 was a second year student at Western Sydney University prior to his arrest.  He would have graduated in June 2020 but for this case.  D1 had wanted to apply to join the New South Wales Police Force upon his graduation.

45.D1 worked part-time at a restaurant from 2016 to December 2018, with a letter from his former employer in support of his mitigation.

46.D1 is a charitable and positive person, participating in community service and charity work in Australia.

47.The court is informed that D1 was going through a difficult time from 2018 to 2019.  His best friend committed suicide in 2018 and this had a catastrophic psychological impact on D1.

48.D1 also lost his job with the Bank of Commonwealth in 2018.  He was struggling to pay his living expenses and tuition fees.  As a result of the pressure, D1 gave up and locked himself up at home all day long for a few months.  He broke up with his long term girlfriend in early 2019.

49.D1 was approached by a friend who told him about a job in Hong Kong that would allow him to clear all his debts in one go.  With the hope of escaping from the ordeal in Sydney and start afresh in a foreign city, D1 took up the offer and flew to Hong Kong on 22 April.

50.D1 regrets committing the present offences, recognizing that he had been foolish and naïve to have trusted his friend.  He is very remorseful and extends his apologies to the Hong Kong authorities.  He wishes to still be able to see his elderly parents upon serving his sentence.

51.Letters from the defendant’s eldest brother, former employer and a social worker who had worked alongside him were produced in mitigation.  They all speak to the fact that the defendant is an intelligent, kind and caring person.

52.Mr Midgley submitted in mitigation that D1 was only instructed about what to do after he had arrived in Hong Kong on 22 April and he simply did what he was told.

53.There is no direct evidence to suggest that D1 had facilitated the importation of the drugs in this case into Hong Kong.  In fact, there is no evidence at all to show whether the drugs had been imported, and if so, when.

54.As such, Mr Midgley submits that D1’s sentence should not be enhanced on the basis of there being an international element, nor on the basis that the defendant had entered Hong Kong as a visitor to commit a crime.

D2’s background and mitigation

55.D2 was born in the Republic of Serbia and holder of a Serbian passport.  He is 41 years old.  His wife and son are in Serbia.

56.In his succinct submissions in mitigation, Mr McGuinniety referred to the letter written by the defendant himself and points out his genuine remorse.  The defendant will not be able to see his now five years old son until he has become a young man.  The defendant speaks little English and life in a Hong Kong prison will be difficult for him.

57.Mr McGuinniety submits that the commission of the offences was unsophisticated, using the fact that the suitcases had zeroes as passcodes as an example.  He says D2 was just a pawn in someone else’s game and is now being expended, and asks the court to pass a sentence that may not crush him completely and throw his entire life away.

Sentence

58.Sentencing tariffs for trafficking in cocaine are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

59.According to the case of Abdallah, for narcotic contents of over 15 kg, the sentence is to be at the sentencer’s discretion.  For reference, for between 4 to 15 kg of cocaine, the sentencing range is 26 to 30 years’ imprisonment.

60.I was referred to the case of HKSAR v Pang Yuet-wan, HCCC 427/2010 where a starting point of 33 years was adopted for trafficking in 232 kg of cocaine.

61.In R v Ng Muk Kam, CACC 685/1993, a case referred to by the learned sentencing judge in Pang Yuet-wan, the appellant was sentenced to life imprisonment after trial for trafficking in 306 kg of morphine.  On appeal, the Court allowed the appeal against sentence and imposed a sentence of 35 years’ imprisonment instead.

Counts 1, 2 and 3: against D1 and D2

62.Given the nature of the commission of the offences and the quantity of drugs involved, and bearing in mind that the individual sentences will be considered under the totality principle later on, I find that for each of the three counts, a notional starting point of 33 years’ imprisonment should be adopted.

63.Furthermore, movement records show D1 entered Hong Kong on 22 April 2019, while D2 arrived on 14 March 2019.  D2 had left Hong Kong three times between his arrival and arrest, either to mainland China or Macau.  It must be the only reasonable inference that they each entered Hong Kong with the specific aim of committing the offences in this case.  I find that this is an aggravating feature.

64.Another aggravating feature in relation to counts 1, 2 and 3 is that the defendants committed the offences jointly.

65.There being insufficient evidence to prove that the drugs had been imported into Hong Kong, I find that there should not be any enhancement based on the presence of an international element[1].

66.For the said two aggravating factors, I will enhance each of the sentences by one year, leading to a post-enhancement sentence of 34 years’ imprisonment, and a discounted sentence of 22 years after plea.

Count 4: 22.47kg: against D2 only

67.For the same reasons, I will also adopt a notional starting point of 33 years’ imprisonment for count 4, and enhance it by six months for the aggravating factor of the defendant committing the offence as a visitor, leading to the enhanced sentence of 33 years 6 months’ imprisonment, and a discounted sentence of 22 years’ imprisonment after plea.

Totality

68.The defendants’ commission of the offences involved planning and premeditation and it is obvious that the two of them could not have been acting alone.  The trafficking was elaborate and not just a simple delivery of drugs on a single occasion.  Properties were rented for the purpose of storing the drugs either before or after them being moved around.  It cannot be said that D1 or D2 were mere passive couriers.  They each actively took part in the trafficking of the drugs in the relevant counts.

D1

69.D1 is 26 years old.  It would appear that he had committed the present offences out of character.  Be that as it may, the summary of facts shows a person actively participating in the movement of a large quantity of dangerous drug.  He was not just a naive young man who was following simple orders. According to his mitigation, he is a smart person, a university student.  He must bear full responsibility for his own action.

70.I do not find that there are mitigating factors to warrant a departure from the guideline sentences.

71.Having considered the principle of totality, I find that given the circumstances of the commission of the three counts, the sentences should be structured so as to arrive at a sentence equivalent to the overall notional starting point of 34 years’ imprisonment for the combined narcotic contents of the three counts, being 167.98 kg.

72.With this combined notional starting point of 34 years’ imprisonment, the sentence after discount would be 22 years’ imprisonment.

73.I will, therefore, order that the sentences for counts 1, 2 and 3 be served wholly concurrently.

74.The final sentence for the three counts that D1 pleaded guilty to is, therefore, 22 years’ imprisonment.

D2

75.D2 is almost 41 years old.  He was also participating actively in the movement of a large quantity of dangerous drugs.  Just as with D1, D2 must also shoulder the full consequences of his own action.  I find that there are no mitigating factors to warrant a departure from the guideline sentences.

76.Having taken a step back in application of the principle of totality, for the combined quantity of 190.45 kg of cocaine, I find that the sentences should be structured so as to arrive at a sentence equivalent to the overall notional starting point of 35 years’ imprisonment, leading to a discounted sentence of 23 years.

77.I order that 22 years of the sentence in count 1 be served consecutively to 1 year of the sentence in count 2, the rest of the sentences be served concurrently.

78.The final sentence for the 4 counts that D2 pleaded guilty to is, therefore, 23 years’ imprisonment.

Mr Dominic Ngai, SPP of Department of Justice, for HKSAR

Mr Jonathan Midgley, instructed by Haldanes, for the 1^st Defendant

Mr Edward McGuinniety, instructed by Jal N Karbhari & Co, assigned by the Department of Legal Aid, for the 2^nd Defendant