HKSAR v. Jehangir Waqas

HCCC 342/2024

[2026] HKCFI 5424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 342 OF 2024

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant was charged with one count of trafficking in a dangerous drug, Count 1, and one count of having custody or control of counterfeit currency notes, Count 2. He pleaded not guilty to both counts and stood trial before the jury. For Count 1, the jury found him not guilty for the offence of trafficking, but guilty of the offence of possession of a dangerous drug. For Count 2, the jury found him guilty.

In sentencing, I have considered the whole of the circumstances including the nature and facts of the case, the type and quantity of drug involved, personal background of the defendant, DATC report, and mitigation put forward on his behalf and relevant sentencing precedents. In relation to the drug offence, I have also had regard to the sentencing principle and approach as laid down in cases such as HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

The facts of the case are simple and may be summarised as follows.

On 6 September 2023, police conducted a raid on the house in which the defendant and his family was living. The defendant responded and opened the door. Holding in his hand were two counterfeit banknotes both with face value of $500. Upon a search in the house, 12.1 grammes of a crystalline solid containing 12.1 grammes of methamphetamine hydrochloride were found. Under caution, the defendant admitted possession of the drug and claimed it was wholly for his own consumption.

I was told that the defendant was born in Pakistan in a working-class family. There he completed primary education. He had worked as a salesperson. In 2021, he came to Hong Kong and filed a non-refoulement claim. Since then, he has been staying in Hong Kong under Form 8 and remained unemployed. He got married in 2013 and had been living with his wife, his son and a stepdaughter.

The defendant does not have a clear record. His first conviction was in 2013, two years after he had arrived Hong Kong. For a charge of attempting to mislead the police officer by giving false information, he was sentenced to 1 month’s imprisonment. In 2016, for possession of dangerous drug, he was sentenced to 3 months’ imprisonment. In 2018, for a charge of theft, he was sentenced to 4 days’ imprisonment. In 2019, he was sentenced to a total of 5 months’ imprisonment for the offences of taking conveyance without authority, using a motor vehicle on the road without insurance against third-party risks, and driving without a licence.

In consideration of the sentence for the dangerous drug count, I first have to consider whether rehabilitative approach is appropriate in this case. It is stated in the DATC report that the defendant is no longer drug dependent, and treatment in DATC is not recommended. In the light of the report, background of the defendant, and that this is the second time he committed this offence, I am of the view that an imprisonment sentence is appropriate in the present case.

The drug involved in this case was ‘Ice’. I have regard to cases such as HKSAR v Mok Cho Tik, CACC 165/2000, HKSAR v N G C Andres, CACC 319/2014, and HKSAR v Kuldeep Singh, CACC 96/2006. I also bear in mind the impact of a new tariff for trafficking in ‘Ice’ as set out in the HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138.

The quantity of drug in the possession of the defendant was quite significant. In my judgment, an initial starting point of 18 months is appropriate.

There are three matters which in my judgment call for enhancement of the sentence.

Firstly, latent risk. In the light of the personal circumstances of the defendant, the quantity of the drug and existence of a large number of resealable transparent bags, despite submission otherwise by learned counsel, Mr Davis, in my assessment, the latent risk was very highand for this reason the sentence should be enhanced by 12 months.

Secondly, the criminal record of the accused. This is the second time the defendant has committed the offence of possession of dangerous drug. Despite the last conviction was in 2016, quite a long time ago, obviously the defendant had not learnt a lesson and for this aggravating feature alone the sentence should be enhanced by 3 months.

Thirdly, the defendant is a Form 8 holder. Having regard to the abovesaid case of N G C Andres, in my judgment, the sentence should be enhanced by 3 months on this ground.

I, however, have to consider totality and be cautious about the risk of excessive enhancement.

Having given the matter anxious consideration, I am of the view that the sentence should be enhanced by a total of 15 months for the reasons I have just mentioned.

The notional sentence after trial for Count 1 is therefore 33 months.

For the counterfeit count as the Court of Appeal observed in HKSAR v Li Ho Yin, CACC 128/2013, there is no tariff for this offence. I note that the total face value of the two counterfeits was $1,000. In my judgment, the counterfeits have a high degree of resemblance to a genuine banknote but overall the fact that they were counterfeits should be easily detected. I also note that there was no evidence that it was the defendant who manufactured the counterfeits and that he was going to use the counterfeits. Despite in the circumstances of the case there was high risk he would use the counterfeits, as he is charged only with a simple possession and not for an offence with any aggravating features such as tendering, I disregard this risk in my consideration. Having regard to HKSAR v Chung Wai Ming, HCCC 353/2025 which Mr Davis drew to my attention and the cases cited therein, I adopt 3 months as the notional sentence after trial.

In relation to Count 1, the defendant pleaded guilty before me to the offence of possession of a dangerous drug. Further, I was told that when the case was still before a magistrate, the defence offered a plea to the offence of possession, but the offer was not accepted by the prosecution. The defence never withdrew the offer to plead guilty to the lesser charge, and also there was no change of stand from the prosecution. At the beginning of the trial, the defendant pleaded guilty before me to the offence of possession and did not dispute possession before the jury. Having regard to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in all the circumstances I am of the view that the defendant is entitled to a one-third discount for this count.

The defendant was convicted after trial for Count 2, there is no basis of any discount.

The defendant was convicted of two offences. Having regard to mitigation submission of Mr Davis, the totality principle, cases including HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, and HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, as well as taking into account the whole circumstances of this case and the findings I have just mentioned, in my judgment, it is appropriate to order 2 months of the sentence of Count 2 to run concurrently to the sentence for Count 1.

In my judgment, the individual sentences and the overall sentence to be imposed are fair, just and balanced in all the circumstances of the offences and the defendant.

Based on the matters aforesaid, I sentence you to the following immediate imprisonment terms:

Count 1, 22 months,

Count 2, 3 months.

Further, I order 2 months of the sentence imposed on Count 2 to run consecutively to that imposed on Count 1. You are to serve a total sentence of 2 years for the two counts.