HKSAR v. Waheed Abdul

CACC 322/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2012

(ON APPEAL FROM HCCC NO. 434 OF 2011)

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BETWEEN

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Before : Hon Chu JA in Court

Date of Hearing : 29 January 2013

Date of Decision : 29 January 2013

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DECISION

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1.The Applicant pleaded guilty before Deputy High Court Judge Toh (as she then was) to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drug involved is 69.36 grammes of a solid containing 45.89 grammes of cocaine. On 6 August 2012, he was sentenced to 5 years’ imprisonment. He now applies for leave to appeal the sentence.

2.The admitted facts show that on 12 July 2011, the applicant was intercepted by police officers at Nos. 281-281A, Shun Ning Road, Cheung Sha Wan, Kowloon.  He was found to have on his person 5 pellets of dangerous drugs that form the subject matter of the charge.  Under caution, the applicant admitted he was trafficking in dangerous drug.

3.The applicant is a young man aged 23 at the time of the offence.  He is a Pakistani national.  He came to Hong Kong illegally in 2009.  At the time of his arrest, he had made a claim under CAT and was awaiting the decision of the Director of Immigration.  He received a monthly living subsidy of $2,000.  He has a clear record.

4.The trial judge followed the guidelines set out in R v Lau Tak Ming & Ors [1990] 1 HKLR 370 and adopted a starting point of 7½ years.  She considered there was no mitigating factor in the case, other than the guilty plea.  Adopting the one-third discount for the plea, the trial judge sentenced the applicant to 5 years’ imprisonment.

5.In support of his application, the applicant asked the court for leniency and to have regard to mitigations already advanced by his defence counsel at the trial, including the reasons why he had committed the offence.  He also asked to be released early and he wanted to contact his family member.  He also provided documents showing his mother has heart problems and his uncle had passed away in June last year.

6.In AG v Pedro Nel Rojas [1994] 1 HKC 342, this court held that the guidelines for trafficking in heroin as set out in R v Lau Tak Ming also apply to trafficking in cocaine.  According to the guidelines in Lau Tak Ming, for an amount of cocaine between 10 grammes and 50 grammes, a sentence of 5 to 8 years is called for.  The trial judge is therefore correct in adopting 7½ years as the starting point.  I agree with the trial judge that apart from the guilty plea, there is no other mitigating factor available to the applicant.  I appreciate that life as a torture claimant may not be easy and that the monthly subsidy of $2,000 may not be a lot of money.  However, this is not a justification or excuse for engaging in illegal activities.  The trial judge’s adoption of an one-third discount on account of his guilty plea accords with the established law.

7.There is no merit in the applicant’s intended appeal against sentence.  The application for leave to appeal is therefore dismissed.

The applicant, unrepresented, appeared in person.