A A
DCCC1322/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1322 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Fayzan Ali
F F
----------------------
G G
Before: H H Judge S. D’Almada Remedios
Date: 12 January 2011 at 3.25 pm
H Present: Ms Chan Sze-yan, PP of the Department of Justice, for H
HKSAR
Mr Mehboobali Ahmedali Dosani, of Messrs Hoosenally &
I Neo, assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) Trafficking in a dangerous drug (販運危險藥物) J
(2) Resisting a police officer in the execution of his
duty (抗拒執行職責的警務人員)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. Defendant, you have pleaded guilty to two charges
before this court. The first charge is trafficking in dangerous
O O
drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs
P Ordinance; and the second charge is that of resisting a police P
officer in the execution of his duty, contrary to section 63 of
Q the Police Force Ordinance, Cap.232. Q
R 2. You admitted that on the 24th day of September 2010, R
outside Kam Koon Building at Lockhart Road in Wanchai, you
S S
unlawfully trafficked in 12.09 grammes of a solid containing
7.39 grammes of cocaine. You also admitted that on that same
T T
day at the same place, you resisted Police Constable 6352, a
U U
CRT33/12.1.2011/SC 1 DCCC1322/2010/Sentence
V V
A A
police officer of the Hong Kong Police Force acting in the
execution of his duty.
B B
C 3. On 24 September, at about 7 pm, the officer, PC6352, C
saw you acting suspiciously at the junction of Hennessy Road in
D Wanchai. He approached you and revealed his police identity by D
displaying his warrant card. You immediately turned around and
E E
fled. The officer gave chase and held onto you from behind.
You resisted him by moving both of your arms and, as a result,
F F
you lost your balance and fell onto the ground. The officer
G told you he was “police, don’t move.” However, you kept on G
struggling.
H H
4. To avoid capture, you then managed to crawl underneath
I I
an unattended coach which was parked nearby, and at that time
the officer was holding onto both of your legs. You used both
J J
of your legs to kick the officer, and one hit his left shoulder
K
and right forearm. The kick caused the officer to lose his K
balance and he too fell on the ground. During the struggle, the
L officer’s jeans were torn and his right knee was injured. L
Needless to say, the officer was on patrol in plainclothes.
M With the help of other police officers, you were subdued and M
arrested. From the left pocket of your trousers, the officers
N N
found a plastic bag containing the drugs.
O O
5. You were arrested, and cash of HK$727, £5,
P 10 SIM cards, 2 mobile phones and 2 wallets were found on you. P
Q 6. The officer had suffered tenderness to his left knee, Q
redness to his left forearm and abrasion to his left knee and
R R
right shoulder.
S S
7. The drugs had an estimated street value of $6,687.
T T
8. Defendant, your solicitor, Mr Dosani, has made very
U full and thorough mitigation on your behalf, and I have taken U
CRT33/12.1.2011/SC 2 DCCC1322/2010/Sentence
V V
A A
into account all that he has had to say. You are 23 years of
age, born in Pakistan and single. You have been to court on
B B
four separate occasions and have five previous convictions. Two
C of them are for possession of dangerous drugs. The other is for C
possession of equipment for smoking, injecting or inhaling
D dangerous drugs. The others are illegally remaining in D
Hong Kong and theft.
E E
9. I am informed that you had illegally entered Hong Kong
F F
via mainland China in 2006. You later registered as a torture
G claimant and are here as a registered torture claimant. At the G
time you were convicted of illegally remaining, of course you
H were not registered as a torture claimant. The theft charge of H
that case was in relation to a paper which identified you as a
I I
torture claimant or it was somebody’s torture claimant paper.
J J
10. I am informed that you have studied up to Primary 6
K
and worked in Pakistan as a part-time private taxi driver K
earning about $2,000 a month, I believe in Hong Kong in the old
L days commonly known as a “pak pai”. L
M 11. I am informed that whilst you have been in Hong Kong, M
you have been financially supported by your father and brother
N N
who send money from Pakistan. They give to you two to three
thousand dollars a month, and therefore you have not claimed any
O O
financial assistance from the ISI or the Social Welfare
P Department. P
Q 12. Mr Dosani concedes that seeing from your record that Q
you are a drug addict and drug dependent. You took to taking
R R
drugs more so by smoking them as you felt lonely and rejected
and more particularly about what would happen in the future.
S S
You would have shared these drugs with others. I am informed
T that these drugs were purchased from a Chinese male in Wanchai. T
Although the street value was $6,600-odd, you only paid $2,000.
U U
CRT33/12.1.2011/SC 3 DCCC1322/2010/Sentence
V V
A A
I have to say that I find that a little difficult to believe as
that is a discount of more than half of the value of the drugs.
B B
C 13. I am also told that the 10 SIM cards found on you, 9 C
were used, expired, pre-paid SIM cards, and you kept them
D because telephone numbers of some of your friends and relatives D
were stored in those SIM cards. You had intended to retrieve
E E
important personal telephone numbers from those expired
SIM cards. Again, I find this explanation as to these nine
F F
expired SIM cards difficult to accept.
G G
14. You were found with two mobile phones on you, and you
H said that you had them on you because your phone was not H
functioning properly and therefore you borrowed a friend’s for
I I
temporary use. Again, I find this difficult to accept.
J J
15. Clearly, if this was a case which was fought on the
K
basis of trafficking, these matters might tend to go to support K
the prosecution’s case of trafficking. So it is neither here
L nor there that I do not accept that part of your mitigation now. L
The strongest mitigating factor of course in your favour is the
M fact that you have pleaded guilty. M
N N
16. As you have, I am sure, been well advised by Mr Dosani
that trafficking in dangerous drugs is a very serious offence
O O
and warrants immediate custodial sentences. Your solicitor has
P correctly referred to the case of Lau Tak Ming as the tariff P
guideline case in sentencing for trafficking in cocaine.
Q Q
17. In regard to the 2nd charge of resisting arrest,
R R
Mr Dosani urged me to kindly consider a concurrent sentence on
this offence as it arises out of the same facts. It does arise
S S
from the same facts. However, I feel that a fully concurrent
T sentence is inappropriate as this was not a minor offence of T
resisting arrest. You had resisted the officer quite violently
U and for a prolonged period of time, going to great extents to U
CRT33/12.1.2011/SC 4 DCCC1322/2010/Sentence
V V
A A
escape his control by vigorously resisting the police officer.
In so doing, by kicking him, you caused him some minor injuries.
B B
In my view, it is not appropriate in those circumstances to
C impose a fully concurrent sentence. C
D 18. Defendant, for the trafficking charge, you had D
trafficked in 7.39 grammes of cocaine, and that falls within the
E E
first bracket of Lau Tak Ming where the guideline up to 10
grammes is between 2 to 5 years’ imprisonment after trial.
F F
G 19. Taking the quantity of drugs you had for trafficking, G
I take a starting point of 4 years’ imprisonment. Giving you
H full credit for your plea of guilty, I reduce that term to one H
of 2 years 8 months’ imprisonment.
I I
20. For the resisting-the-police-officer charge, Charge 2,
J J
I sentence you to 21 days’ imprisonment. However, I order
K
7 days of that term to run consecutively to the 1st charge and K
the remaining term to be concurrent. So that means you will
L serve 2 years, 8 months and 7 days. L
M M
N N
(S. D’Almada Remedios)
O District Judge O
P P
Q Q
R R
S S
T T
U U
CRT33/12.1.2011/SC 5 DCCC1322/2010/Sentence
V V
A A
DCCC1322/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1322 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Fayzan Ali
F F
----------------------
G G
Before: H H Judge S. D’Almada Remedios
Date: 12 January 2011 at 3.25 pm
H Present: Ms Chan Sze-yan, PP of the Department of Justice, for H
HKSAR
Mr Mehboobali Ahmedali Dosani, of Messrs Hoosenally &
I Neo, assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) Trafficking in a dangerous drug (販運危險藥物) J
(2) Resisting a police officer in the execution of his
duty (抗拒執行職責的警務人員)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. Defendant, you have pleaded guilty to two charges
before this court. The first charge is trafficking in dangerous
O O
drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs
P Ordinance; and the second charge is that of resisting a police P
officer in the execution of his duty, contrary to section 63 of
Q the Police Force Ordinance, Cap.232. Q
R 2. You admitted that on the 24th day of September 2010, R
outside Kam Koon Building at Lockhart Road in Wanchai, you
S S
unlawfully trafficked in 12.09 grammes of a solid containing
7.39 grammes of cocaine. You also admitted that on that same
T T
day at the same place, you resisted Police Constable 6352, a
U U
CRT33/12.1.2011/SC 1 DCCC1322/2010/Sentence
V V
A A
police officer of the Hong Kong Police Force acting in the
execution of his duty.
B B
C 3. On 24 September, at about 7 pm, the officer, PC6352, C
saw you acting suspiciously at the junction of Hennessy Road in
D Wanchai. He approached you and revealed his police identity by D
displaying his warrant card. You immediately turned around and
E E
fled. The officer gave chase and held onto you from behind.
You resisted him by moving both of your arms and, as a result,
F F
you lost your balance and fell onto the ground. The officer
G told you he was “police, don’t move.” However, you kept on G
struggling.
H H
4. To avoid capture, you then managed to crawl underneath
I I
an unattended coach which was parked nearby, and at that time
the officer was holding onto both of your legs. You used both
J J
of your legs to kick the officer, and one hit his left shoulder
K
and right forearm. The kick caused the officer to lose his K
balance and he too fell on the ground. During the struggle, the
L officer’s jeans were torn and his right knee was injured. L
Needless to say, the officer was on patrol in plainclothes.
M With the help of other police officers, you were subdued and M
arrested. From the left pocket of your trousers, the officers
N N
found a plastic bag containing the drugs.
O O
5. You were arrested, and cash of HK$727, £5,
P 10 SIM cards, 2 mobile phones and 2 wallets were found on you. P
Q 6. The officer had suffered tenderness to his left knee, Q
redness to his left forearm and abrasion to his left knee and
R R
right shoulder.
S S
7. The drugs had an estimated street value of $6,687.
T T
8. Defendant, your solicitor, Mr Dosani, has made very
U full and thorough mitigation on your behalf, and I have taken U
CRT33/12.1.2011/SC 2 DCCC1322/2010/Sentence
V V
A A
into account all that he has had to say. You are 23 years of
age, born in Pakistan and single. You have been to court on
B B
four separate occasions and have five previous convictions. Two
C of them are for possession of dangerous drugs. The other is for C
possession of equipment for smoking, injecting or inhaling
D dangerous drugs. The others are illegally remaining in D
Hong Kong and theft.
E E
9. I am informed that you had illegally entered Hong Kong
F F
via mainland China in 2006. You later registered as a torture
G claimant and are here as a registered torture claimant. At the G
time you were convicted of illegally remaining, of course you
H were not registered as a torture claimant. The theft charge of H
that case was in relation to a paper which identified you as a
I I
torture claimant or it was somebody’s torture claimant paper.
J J
10. I am informed that you have studied up to Primary 6
K
and worked in Pakistan as a part-time private taxi driver K
earning about $2,000 a month, I believe in Hong Kong in the old
L days commonly known as a “pak pai”. L
M 11. I am informed that whilst you have been in Hong Kong, M
you have been financially supported by your father and brother
N N
who send money from Pakistan. They give to you two to three
thousand dollars a month, and therefore you have not claimed any
O O
financial assistance from the ISI or the Social Welfare
P Department. P
Q 12. Mr Dosani concedes that seeing from your record that Q
you are a drug addict and drug dependent. You took to taking
R R
drugs more so by smoking them as you felt lonely and rejected
and more particularly about what would happen in the future.
S S
You would have shared these drugs with others. I am informed
T that these drugs were purchased from a Chinese male in Wanchai. T
Although the street value was $6,600-odd, you only paid $2,000.
U U
CRT33/12.1.2011/SC 3 DCCC1322/2010/Sentence
V V
A A
I have to say that I find that a little difficult to believe as
that is a discount of more than half of the value of the drugs.
B B
C 13. I am also told that the 10 SIM cards found on you, 9 C
were used, expired, pre-paid SIM cards, and you kept them
D because telephone numbers of some of your friends and relatives D
were stored in those SIM cards. You had intended to retrieve
E E
important personal telephone numbers from those expired
SIM cards. Again, I find this explanation as to these nine
F F
expired SIM cards difficult to accept.
G G
14. You were found with two mobile phones on you, and you
H said that you had them on you because your phone was not H
functioning properly and therefore you borrowed a friend’s for
I I
temporary use. Again, I find this difficult to accept.
J J
15. Clearly, if this was a case which was fought on the
K
basis of trafficking, these matters might tend to go to support K
the prosecution’s case of trafficking. So it is neither here
L nor there that I do not accept that part of your mitigation now. L
The strongest mitigating factor of course in your favour is the
M fact that you have pleaded guilty. M
N N
16. As you have, I am sure, been well advised by Mr Dosani
that trafficking in dangerous drugs is a very serious offence
O O
and warrants immediate custodial sentences. Your solicitor has
P correctly referred to the case of Lau Tak Ming as the tariff P
guideline case in sentencing for trafficking in cocaine.
Q Q
17. In regard to the 2nd charge of resisting arrest,
R R
Mr Dosani urged me to kindly consider a concurrent sentence on
this offence as it arises out of the same facts. It does arise
S S
from the same facts. However, I feel that a fully concurrent
T sentence is inappropriate as this was not a minor offence of T
resisting arrest. You had resisted the officer quite violently
U and for a prolonged period of time, going to great extents to U
CRT33/12.1.2011/SC 4 DCCC1322/2010/Sentence
V V
A A
escape his control by vigorously resisting the police officer.
In so doing, by kicking him, you caused him some minor injuries.
B B
In my view, it is not appropriate in those circumstances to
C impose a fully concurrent sentence. C
D 18. Defendant, for the trafficking charge, you had D
trafficked in 7.39 grammes of cocaine, and that falls within the
E E
first bracket of Lau Tak Ming where the guideline up to 10
grammes is between 2 to 5 years’ imprisonment after trial.
F F
G 19. Taking the quantity of drugs you had for trafficking, G
I take a starting point of 4 years’ imprisonment. Giving you
H full credit for your plea of guilty, I reduce that term to one H
of 2 years 8 months’ imprisonment.
I I
20. For the resisting-the-police-officer charge, Charge 2,
J J
I sentence you to 21 days’ imprisonment. However, I order
K
7 days of that term to run consecutively to the 1st charge and K
the remaining term to be concurrent. So that means you will
L serve 2 years, 8 months and 7 days. L
M M
N N
(S. D’Almada Remedios)
O District Judge O
P P
Q Q
R R
S S
T T
U U
CRT33/12.1.2011/SC 5 DCCC1322/2010/Sentence
V V