HKSAR v. Muhammand Riaz Awan and Others

DCCC1147/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1147 OF 2009

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.The defendants pleaded guilty to a number of offences involving trafficking in dangerous drugs.

2.The 1st defendant pleaded guilty to three charges. Two were for trafficking in cocaine and one was for trafficking in methamphetamine hydrochloride. In each case, the quantity was small. The offences were committed on 10, 14 and 21 July.

3.The 2nd defendant pleaded guilty to Charges 5 and 9 on the charge sheet. These were two offences for trafficking in small quantities of cocaine and they were committed on 16 and 21 July.

4.The 3rd defendant pleaded guilty to two charges, Charges 2 and 4 on the charge sheet; one of trafficking in methamphetamine hydrochloride and one of trafficking in cocaine. In each case, the amount involved was small and the offences were committed on 14 and 16 July.

5.The re-amended Summary of Facts, which the defendants have admitted, states that all the offences occurred between 9 July 2009 and 21 July 2009.

6.On the evening of 9 July, a Police Superintendent Spencer was at Lockhart Road, Wanchai, when he was approached by the 1st defendant. He offered the officer dangerous drugs. He provided his mobile phone number to the officer and then left. An authorisation was then granted to the officer to commence an operation, and undercover agents in this operation were Superintendent Spencer (“Spencer”), Chief Inspector Baker (“Baker”) and Chief Inspector Alan Philip (“Philip”).

7.On the evening of 10 July 2009, Spencer attended the Pacific Coffee Shop at the junction of Fenwick Street and Lockhart Road. He then rang up the 1st defendant, using the mobile number provided by him, and Spencer asked the 1st defendant to meet him at the coffee shop. Soon afterwards, the defendant arrived and offered to supply dangerous drugs to Spencer. Spencer asked for cocaine in the value of $1,300 and the 1st defendant agreed. He then left the shop and returned a few minutes later and handed a transparent plastic bag to the officer. The officer paid for the drugs.

8.At about 1240 hours, two South-East Asian males approached Baker at Lugard Road, one of them claiming to be “Tyson” and the other claiming to be “James” and he was later identified by Baker as the 2nd defendant. Baker was using the name “Roger” at that time.

9.On 14 July at about 2130 hours in the evening, Baker encountered the 1st defendant at Lockhart Road near the coffee shop. The 1st defendant offered to sell hashish to Baker and that offer was declined. At about 5 past 10 the same evening, Baker encountered another South-East Asian male outside another Pacific Coffee Shop situated at the junction of Lockhart Road and Fenwick Street. The male claimed to be called Ali and he was later identified as the 3rd defendant.

10.D3 offered to supply a variety of drugs including Ecstasy, cocaine and “Ice” to Baker. Baker had asked for “Ice” at a value of $1,000. The 3rd defendant made phone calls with his own phone. The 3rd defendant then asked Baker to follow him to a doorway in Jaffe Road near the corner of Fenwick Street.

11.A male whom Baker recognised as the 1st defendant approached Baker and D3. The 1st defendant then handed a plastic packet containing a gramme of powder which later turned out to be “Ice” to Baker. Baker paid for the “Ice”. The 1st defendant introduced himself as “Hon” and D1 told Baker that he could order drugs from either him or D3, since they were working for the same syndicate. D1 told Baker that he could ring him up and gave him a number. Should he want to buy any more drugs in the future, he promised Baker that he would receive “good stuff.” Baker then left and it was subsequently the drugs were later found, as I said, to be “Ice”.

12.At about 9.30, the 3rd defendant approached Spencer at the junction of Fenwick Street and Lockhart Road and he gave Spencer his mobile phone number for contacting. At about 2250 hours the same evening, Spencer rang up D3. D1 and D3 arrived at the junction together. On arrival, Spencer was already at the junction and D1 asked Spencer what sort of drugs he wanted. Spencer replied that he want to buy “Ice” in the value of $1,000 and then left. A few minutes later, the 1st defendant returned to Spencer and gave him drugs which later turned out to be “Ice” for which Spencer paid.

13.On 16 July at 5 past 9, Philip first encountered D1 and D3 together near the Pacific Coffee Shop. D3 approached Philip and asked him if he wanted to purchase drugs. D3 offered to supply cocaine, “Ice” and other drugs to Philip. Philip requested D3 for cocaine valued at $1,200. D3 then spoke to D1 in a language which the officer could not understand. Afterwards, the 1st defendant left the shop. The 3rd defendant told Philip that D1 would return later with the drugs and D3 later gave Philip his mobile phone number for contact. D3 invited Philip to ring him when he wanted to purchase dangerous drugs again.

14.At about 9.35 the same evening, an unknown South-East Asian male brought a small plastic bag of white powder to D3 and D3 passed it to Philip, telling Philip that the bag contained cocaine. Philip paid for the drugs and it was later certified as being cocaine. At about 9.55 pm on the 16 July, Baker rang up D2 on his mobile phone number and Baker wanted to confirm if D2 was the male whom he had met on 10 July as referred to earlier. When the phone was answered, Baker said it was “James”. The male who answered the call confirmed in the positive, and the male who is suspected to be D2 asked Baker to meet him near the pub Joe Bananas at Lugard Road in Wanchai.

15.Later, D2 arrived at the bar. Baker recognised him immediately and D2 asked Baker what he wanted. Baker replied and requested cocaine in the sum of $1,300. D2 then left the pub and soon afterwards he returned holding something in his hand. The 2nd defendant, however, told Baker that the stuff was not good and D2 asked Baker to wait further and then left the pub. Five minutes later, D2 returned to the pub with a transparent plastic bag containing cocaine.

16.D2 said that this stuff was better than the previous one and Baker paid D2 for the drugs. He in fact handed three $500 banknotes to Baker, and out of the sum of money, $200 was to be kept by D2 for the next order. Baker further told the 2nd defendant that he would be attending a party soon and Baker asked the 2nd defendant how much cocaine he would purchase with $10,000. D2 replied that for $10,000, 9 grammes of cocaine could be purchased. It was subsequently certified by Shum that what the officer had been given was in fact cocaine.

17.On 21 July, Baker was supplied with marked notes and at about 7.50 that evening, Baker rang up D2. Baker claimed to be “Roger” and demanded drugs for the sum of $5,000. D2 told Baker to meet him at the alleyway in Lugard Road. At about 8.45 the same evening, Baker handed the four marked notes to Spencer and four other marked banknotes to Philip. At about 8.45 the same evening, Baker handed the four marked notes to Spencer and four other marked banknotes to Philip.

18.At about 1945 hours, Spencer rang up D1 and asked to meet him at the 7-Eleven convenience shop near Fenwick Street. At around 7.59, D1 arrived at the shop and D1 asked Spencer what types of drugs he would like to purchase. Spencer demanded cocaine in the value of $1,200. D1 then handed Spencer a transparent plastic bag containing cocaine. Spencer gave D1 the banknotes. D1 returned three $100 banknotes as change. D1 then left the shop after the transaction had been completed and it was later certified that that drug was cocaine.

19.At about 9.40, D2 told Baker to meet him at the alleyway next to Delaney’s bar and when Baker encountered D2, Baker told D2 that he wanted to buy some cocaine. D2 promised he would get him some “good stuff”. He asked Baker to follow him. Baker then followed D2. Subsequently, D2 encountered D1. They talked to each other. D2 asked Baker to wait for him at the junction of Fenwick Street and Jaffe Road and D2 then left.

20.Whilst Baker was waiting, he saw D1 and D3 wandering nearby. At about 9.48, D2 returned to Baker. D2 then escorted Baker to the entrance of the Jubilee Centre at Fenwick Street. D2 handed Baker five small plastic bags containing cocaine.

21.On completion of the last transaction, Baker directed surveillance officers to arrest all three defendants who were all in the vicinity of the last transaction. The three accused then ran in different directions and they were later arrested.

22.The 1st defendant has previous convictions for unrelated matters. All the matters involved immigration offences.

23.The 2nd defendant has one previous court appearance in 2007. He was convicted on that occasion of possession of dangerous drugs and breach of condition of stay. He was given suspended sentences in respect of both those offences, the sentences being suspended for a period of 3 years, and he is in breach of those suspended sentences by the commission of the offences to which he has pleaded guilty today.

24.In relation to the 1st defendant, I have been told in mitigation that he not only co-operated fully with the police at the time but has given them certain information with a view to assisting the police in locating persons involved in this syndicate. So far, no arrest has been made but I am told by the counsel on his behalf that he remains willing to be a prosecution witness should any person later be arrested.

25.I am told that the defendant was born in 1973. He is aged 36. He comes from Pakistan and he speaks Punjabi and English. He came to Hong Kong in July of 2007. He is currently seeking refugee status due to alleged torture in Pakistan and this matter is yet to be determined. He lives sometimes with his brother and apparently sometimes he stays outside in Wanchai. His sister lives in Belgium and his brother‑in‑law occasionally sends him money. He was educated in Pakistan to Grade 10 and did office work there before coming to Hong Kong. He says that the offences were committed at the behest of another gentleman from the subcontinent of India called Sunny and the reason he became involved was to alleviate his financial situation.

26.It was brought out in mitigation, and it is obvious, that these offences all involved undercover officers and in relation to the 1st defendant it all involved the same undercover officer. The offences were committed close together on 10, 14 and 21 July.

27.In relation to the 2nd defendant it is accepted by his counsel that his client is in breach of the suspended sentence. He also comes from India and claims refugee status. This is due to a dispute with a political party in India. He came to Hong Kong in September of 2007. His father is 55 and retired, and his mother is a housewife. He has two brothers and two sisters. He is a married man. His wife is currently aged 22 and they have a son aged six. Before coming to Hong Kong he worked in the construction trade in Calcutta earning some HK$1,000 a month.

28.The offences were committed by the defendant to finance his drug habit. Apparently, when he came to Hong Kong initially, his brother used to send him money, but that stopped when his brother learned that the money was being spent on drugs. He also says the person behind his commission of the offences is this man called Sunny and he committed the offences to finance his drug habit and also he was promised some food and accommodation. He has expressed deep remorse for his involvement in this matter.

29.In connection with D3 a letter has been supplied to the court by the defendant. I have read the contents of that letter. He alleges that he was approached by somebody claiming to be a police informant. It was through that he became involved these offences. He admits that the offer of money was a temptation and he became greedy. He has co-operated with the authorities. I am told that he is a man of no education. He is illiterate and in fact the letter that was provided to the court was written by somebody else. I am told that he received very little by way of financial reward for his involvement in these offences.

30.He came to Hong Kong in October 2006. Like the other defendants, he is an asylum seeker. Apparently, a friend of his was murdered in the war. He was a witness and had received death threats in connection with that incident. Counsel representing him said that he is an uneducated man and gullible. He has no previous history of drug-taking, and as with the others, the offences were committed close together.

31.The place where these offences were committed is an area notorious for drug-trafficking. It is quite apparent from the facts that the defendants were part of a well-organised syndicate. It is apparent that there were a variety of drugs available. It is urged upon me that the quantities involved were small and that is true. However, it is clear that each of the defendants had access to substantial quantities of drugs. These were individual transactions for which they were prosecuted and the way the system worked was that of course at any one time, as part of this drug-trafficking operation, they would only be caught in possession of a very small quantity of drugs because the main cache was kept elsewhere.

32.With regard to the 1st defendant, on Charge 1, I take a starting point of 3 years and I reduce that to 2 years to reflect his guilty plea. On Charge 3, I take a starting point of 4 years and reduce that to 32 months to reflect the plea. On Charge 7, I take a starting point of 3 years and I reduce that to 2 years to reflect the guilty plea.

33.I have considered the question of totality and what I have decided is: in relation to Charge 3, 12 months of that sentence will be consecutive to Charge 1. In connection with Charge 7, 12 months will be consecutive to the other charges. So the 1st defendant will go to prison for a period of 4 years.

34.In relation to the 2nd defendant, on Charge 5, I take a starting point of 3 years and reduce that to 2 years to reflect the guilty plea. On Charge 9, I take a starting point of 3 years and reduce that to 2 years to reflect the guilty plea. I order that 12 months of that sentence be served consecutively, that is 3 years.

35.He is, however, in breach of a suspended sentence. The suspended sentence is 5 months on the two offences and counsel accepts that with regard to the commission of these offences there is no reason why these offences should not be activated. I have taken into account that the offences were some time ago - they are nearly 3 years old now. I have decided that 3 months of that suspended sentence should run consecutive to the 3 years on Charges 5 and 9.

36.For the 3rd defendant, on Charge 2, I take a starting point of 4 years and reduce that to 32 months to reflect the guilty plea. On Charge 4, I take a starting point of 3 years and reduce that to 2 years to reflect the guilty plea. Looking at the question of totality there, I have decided that 8 months of Charge 4 should run consecutive to Charge 2, so the total there will be 40 months’ imprisonment.

37.As regards the charges to which not guilty pleas have been entered, I order that those charges should remain on the file.

Appeal against sentence dismissed. see CACC135/2010 dated 3 December 2010