HKSAR v. Muhammad Riaz Awan

CACC 135 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 135 OF 2010

(ON APPEAL FROM DCCC 1147 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Yeung JA and Wright J

Date of Hearing: 3 December 2010

Date of Judgment: 3 December 2010

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.The appellant (Muhammad Riaz Awan) together with two others (Azad and Shahid) appeared before Judge Browne in the District Court on an indictment consisting of nine charges.

2.The appellant pleaded guilty to the 1^st, 3^rd and 7^th charges of trafficking in a dangerous drug, involving respectively 0.75 gram of a powder containing 0.25 gram of cocaine, 0.57 gram of a powder containing 0.54 gram of “ice”, and 0.39 gram of a powder containing 0.16 gram of cocaine.

3.In respect of each of the 1^st and 7^th charges of cocaine trafficking, the judge sentenced the appellant to 2 years’ imprisonment and in respect of the 3^rd charge of “ice” trafficking, the judge sentenced the appellant to 32 months’ imprisonment. The judge ordered one year of the sentences on each of the 3^rd and 7^th charges to run consecutively to the 2-year sentence on the 1^st charge, making a total sentence of 4 years’ imprisonment. The appellant, having obtained leave from Cheung JA on 7 October 2010, appeals against that sentence.

The Facts

4.On 9 July 2009, the appellant approached Police Superintendent Spencer (“Spencer”) at Lockhart Road and offered him dangerous drugs, which led to an undercover operation involving Spencer and two other officers acting as undercover agents.

5.On 10 July 2009, Spencer contacted the appellant and arranged to meet him at the “Pacific Coffee” shop at the junction of Fenwick Street and Lockhart Road, where the appellant subsequently sold 0.75 gram of a powder containing 0.25 gram of cocaine, the subject matter of the 1^st charge, to Spencer for $1,300.

6.On 14 July 2009, Shahid approached Spencer and gave him a contact telephone number. Spencer telephoned Shahid, and then met him and the appellant at the junction of Fenwick Street and Lockhart Road. The appellant asked Spencer what he wanted and Spencer said “ice”. The appellant left and returned a few minutes later to give Spencer two plastic bags of a total of 0.57 gram of a powder containing 0.54 gram of “ice”, the subject matter of the 3^rd charge. Spencer paid the appellant $1,000.

7.On 21 July 2009, Spencer contacted the appellant and arranged to meet him at the “7-Eleven” near Fenwick Street. The appellant arrived just before 8 p.m. and asked Spencer what drugs he wanted. When Spencer said he wanted $1,200 worth of cocaine, the appellant handed him a plastic bag of 0.39 gram of a powder containing 0.16 gram of cocaine, the subject matter of the 7^th charge. The appellant took three $500 notes from Spencer and gave him three $100 notes as the change.

8.The appellant, Azad and Shahid were then arrested. It appeared that the appellant, Azad and Shahid were involved in the drug trafficking business together.

9.The appellant, aged 36, is an illegal immigrant from Pakistan, currently in Hong Kong pending the determination of his claim as a torture victim. He said he committed the offences to alleviate his financial difficulties. The appellant had three previous convictions of immigration related offences.

The Judge’s Approach

10.The judge took the view that the appellant, Azad and Shahid were part of a well-organized syndicate supplying a variety of drugs to customers in an area which was notorious for drug trafficking. The quantities of drugs involved in each transaction were small, but the judge believed that the appellant had access to substantial quantities of drugs and the “main cache was kept elsewhere”.

11.In respect of the 1^st, 3^rd and 7^th charges, the judge adopted starting points of 3 years, 4 years and 3 years, which he reduced by one-third on account of the guilty pleas to 2 years, 32 months and 2 years respectively. The judge further ordered one year each of the sentences on the 3^rd and 7^th charges to run consecutively to the sentence on the 1^st charge, making a total sentence of 4 years’ imprisonment.

Grounds of Appeal

12.In a letter to the court annexed to his application, the appellant asked for mercy, saying that the sentence was high as it was his first offence, and that his father was disabled and his younger brother had been seriously injured. He said he had to take care of them and his family in Pakistan. The appellant asked for a concurrent sentence on all three charges.

13.In his submission to us, the appellant claims that he was acting alone and was not part of a gang. He says that it was just his friend who gave him the drugs to give to the police. When questioned as to why he had admitted the summary of facts at trial, he says that his lawyer told him to do so in order to have a more lenient sentence.

14.The appellant furthers asks this court to cut short his sentence so that he can go back to his family in Pakistan earlier, saying that he likes Hong Kong, but dislikes the police here.

Discussion

15.What the appellant tells us is totally different from the facts that he had admitted before the judge, but we can only deal with the case on the basis of the facts that he had admitted.

16.The appellant had pleaded guilty to three offences of supplying cocaine and “ice” to Spencer on three different occasions. The facts that he had admitted show that he was acting with others as a group. In his dealings with Spencer, the appellant was assisted by either Azad or Shahid.

17.Trafficking in a dangerous drug is a very serious offence and to deter people from engaging in such an evil business, the Court of Appeal had laid down clear sentencing guidelines.

18.For trafficking of up to 10 grammes of cocaine, the starting point is 2 to 5 years’ imprisonment (see R v Lau Tak-ming & Ors [1990] 2 HKLR 370 as applied in AG v Pedro Nel Rojas [1994] 1 HKC 342), and for trafficking of up to 10 grammes of “ice”, the starting point is 3 to 7 years’ imprisonment (see AG v Ching Kwok-hung [1991] 2 HKLR 125).

19.Whilst sentences in drug-trafficking cases depend principally on the quantities of dangerous drugs, and the three charges against the appellant involved only modest quantities, the judge was right to have identified the important aggravating factors, namely that it was a well-organized and relatively large scale drug trafficking operation right in the city centre, and that the appellant and his accomplices clearly had access to larger quantities of a variety of dangerous drugs.

20.The appellant’s acts were repeated commercial trafficking of dangerous drugs within a short period of two weeks in an area where local residents and tourists often gathered. The appellant and his accomplices were taking advantage of a ready and available market.

21.We agree with the written submissions of Ms Agnes Chan, counsel for the respondent, that a deterrent sentence was called for.

22.We are not persuaded, in the circumstances of the present case, that the starting points adopted by the judge are manifestly excessive. The judge had reduced the starting points by one third on account of the guilty pleas.

23.The offences were committed on three different occasions and the judge was entitled to order one year of the sentences on each of the 3^rd and 7^th charges to run consecutively to the sentence on the 1^st charge.

24.The appellant’s financial and family difficulties are not mitigating factors for the drug trafficking offences committed by the appellant.

25.The total sentence of 4 years’ imprisonment is neither wrong in principle nor manifestly excessive. The appeal against sentence is dismissed.

Ms Agnes Chan, SPP of the Department of Justice for the Respondent.

Applicant: In Person.