CRIMINAL CASE NO. 411 OF 2009
COURT: On 2 June last year, the two of you, together with a former co-accused who is the wife of the 1st accused, arrived in Hong Kong on a flight from Surinam via Amsterdam. You were intercepted by police officers.
The suitcases which had been checked in by the 1st and former 2nd accused were found, upon examination, to contain almost 1½ kilograms of cocaine. The drugs were more or less evenly split between the two suitcases and were carefully concealed within the construction of the case itself. The bag checked in by and in the possession of the 3rd accused was also searched and found to contain nothing illicit.
The police had, in fact, been keeping observation for your arrival. It was noticed that the 1st accused removed two suitcases from the baggage carousel and placed them on a trolley. He then, together with his wife, walked out of the baggage reclaim area, through Customs, and into the arrivals hall. After they had passed through Customs, they met up with the 3rd accused. They got to the arrivals hall and then went off to join a taxi queue.
The 3rd accused had, in the meantime, stopped to purchase a SIM card for a mobile telephone. At the taxi queue, the 3rd accused hailed a taxi and instructed the driver to go to North Point. His suitcase was placed into the boot of the taxi whilst the suitcases of the 1st accused and his wife were on the pavement or on a trolley. It was at this stage that the police intercepted them.
The 1st accused was interviewed under caution the following day and in that interview, he admitted that he had been in possession of the suitcase checked in in his name, as well as its contents. In the passage of time, he came to accept that he was in fact trafficking in the total quantity of dangerous drugs.
He did say in that record of interview, however, that he had met the 3rd accused on the aircraft and that the 3rd accused had appeared again when they were showing the taxi driver the hotel’s address and requested to board the same taxi. That is, in the light of the evidence that we have heard during the course of the trial over the last 12 days, untrue for - and I will turn to this when dealing specifically with the case of the 3rd accused - it is quite plain that the 3rd accused had been escorting the 1st accused and his wife to Hong Kong.
The 1st accused, on the first day of trial, entered a plea of guilty to the charge. He had, however, at a much earlier stage, at a pre-trial review, indicated his intention to enter that plea as well as to make a non-prejudicial statement with potential willingness to be a prosecution witness.
The 3rd accused maintained his plea of not guilty at the trial and challenged the admissibility of two cautioned statements, one of them successfully and one unsuccessfully. He maintained that plea of not guilty and the trial proceeded to its conclusion yesterday, the 3rd accused having elected, as is his right, not to give evidence.
The 1st accused's wife was acquitted by the jury, by a majority, but the 3rd accused was unanimously convicted of the offence.
This was a very substantial quantity of cocaine. Precisely, it was 1.46 kilograms which falls within the second band of the current sentencing guidelines for heroin and cocaine, a decision of the Court of Appeal in Abdallah Anwar Abbas, which creates a bracket of between 1,200 and 4,000 grammes, proscribing a band of imprisonment between 23 and 26 years.
Both counsel on behalf of the accused have urged me to take a starting point of 23 years, given the fact that the quantity of cocaine in this matter is close to the starting point. I propose to do that because when one is dealing with these types of quantities, to try to fine-tune sentence to a matter of months based upon 100 or 200 grammes is, in my view, unrealistic.
Consequently, for the quantity of drugs involved, I will take, for both accused, a starting point after trial of 23 years' imprisonment.
The Court of Appeal in Abbas at paragraph 21 said:
“It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes.”
And at paragraph 43 of the judgment:
“We do not envisage that the enhancement for any of the reasons we have itemised for amounts above 1 kilogram will be less than 2 years' imprisonment in addition to the new guideline tariffs we have set out.”
As a consequence of that observation, I increase the starting point after trial for each accused to 25 years’ imprisonment.
In respect of the 1st accused, obviously, the major mitigation is his plea of guilty which, on current sentencing policy, entitles him to a one-third discount, thereby reducing that sentence to 16 years and 8 months’ imprisonment. The question is whether there is further mitigation available to him. There is nothing, in my judgment, in his personal circumstances or in the circumstances of his involvement in the commission of the offence which entitles him to any further reduction.
The remaining question seems to me to be whether he should be entitled to any further discount as a result of providing the non-prejudicial statement to the police and offering to testify on behalf of the prosecution. I recognise that this course of conduct may be categorised as reflecting remorse on his part, but such allowance as is made for that aspect of his co-operation is well catered for in the one-third discount for the plea.
In my judgment, the fact that somebody makes a statement and offers, but is not called upon, to give evidence on behalf of the prosecution is not, on its own, a matter which entitles him to further discount. There may be circumstances where such a discount would be appropriate, but this is not one. I say that having had the benefit of the non-prejudicial statement being made available to me during the course of the trial and consequently being aware of its contents.
In regard to the 1st defendant, I have taken into account, in determining the starting point, that his role was simply that of a courier. I am prepared to accept from the Summary of Facts which he has agreed that there is no suggestion that he played a more active role. It may be that he was a perfectly willing courier tempted by an offer of reward for his acts.
The 3rd accused, however, is in a different position. I have had the benefit of hearing the evidence and I have the benefit of the jury's verdict. It is quite plain from their verdict that they rejected entirely the version put forward by the 3rd accused in his record of interview. It seems to me inevitable that they accepted the evidence of the then 2nd accused in regard to the 3rd accused's conduct.
That conduct plainly demonstrated that it was he who set up this delivery and that his role, even assuming that the person whom he referred to as ‘Faizel’ existed, was that of an escort to ensure the safe delivery of the consignment of drugs to Hong Kong, in colloquial terms, what might be referred to as ‘a minder’. His role was certainly more active than that of the 1st accused and the role that he played, as demonstrated by the evidence, is such that it constitutes a further aggravating feature.
I am mindful of the comment that the Court of Appeal passed in Abdallah that a further aggravating feature is if the trafficker is shown to be a mastermind or senior player and, in my judgment, the 3rd accused falls within that category. I am mindful also of the fact that the Court of Appeal suggested that each of the aggravating features is worthy of 2 years' additional sentence, but to impose a further 2 years to take the sentence up to 27 years would, in my view, not be appropriate.
I consequently, in respect of the 3rd accused, take an additional 1 year for the specific aggravating feature peculiar to him. As Mr Hemmings, who has appeared for him throughout, realistically accepts, there is no available mitigation. Consequently, that sentence does not fall to be reduced at all.
I accept that these are very substantial sentences. They are intended to be. The scourge of drugs trafficking is a matter of real concern to every community in the world. This particular offence demonstrates how drugs are moved around the world in sophisticated and planned operations, using people whose circumstances make them desperate enough to involve themselves in these offences and whose perhaps personal appearances are unlikely to attract attention.
Unless robust sentences are imposed as deterrents, there is, particularly given other sentencing regimes in this region, a real danger of Hong Kong becoming a drugs-trafficking centre. The people who involve themselves in drugs trafficking, at the end of the day, have huge responsibility for misery in the communities to which they spread their drugs.
Stand up, please. The 1st accused, Toerab Mohamedajoeb, you are to serve a period of 16 years and 8 months' imprisonment.
The 3rd accused, Joerawan Wikash Shardhanand, you are to serve a period of 26 years' imprisonment.
A3's application for leave to appeal against conviction dismissed by Court of Appeal. A3's application for leave to appeal against sentence granted by Court of Appeal. Please refer to CACC278/2010 dated 12 July 2011