HKSAR v. NELSON ANTHONY DHINER

HCCC298/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 298 OF 2010

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HKSAR
v
Nelson Anthony Dhiner
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Before: Hon Mackintosh J

Date: 11 November 2010 at 9.54 am

Present: Mr P J Power, SADPP of the Department of Justice, for HKSAR
Mr Michael Leung, instructed by Bernard Wong
& Co, for the Accused

Offence: Trafficking in a dangerous drug (販運危險藥物)

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Nelson Anthony Dhiner, listen to what I am going to say. Stand up.

You are a 33-year-old Tanzanian man, married, I am told, with a 1-year-old son. You came to Hong Kong on a flight from Dubai withpackets of heroin or heroin derivatives concealed in your body. Customs officers intercepted you, and you were sent to hospital,where, in due course, you excreted those packets, 120 in all.

They were found to contain a mixture of around a kilogram, of which 711.37 grammes was heroin hydrochloride or a derivative of heroin.In other words, you imported that heroin into Hong Kong.

When you were questioned, you claimed that you had simply found the packets inside a dustbin in a washroom at Dubai Airport, and thatyou knew that they were drugs, and that you had then swallowed them.

I understand you maintain that position, but, as I have made clear already, that story cannot possibly be true, and I must rejectit. You must have been recruited as a courier and must have been offered some reward to act in that way.

It makes no difference to the approach to sentencing you, because you were trafficking the dangerous drugs, and it is inevitable thatafter your arrival in Hong Kong they would have been passed on to someone else as part of a chain of distribution.

These drugs had a retail value in Hong Kong of about $1 million.

Now, you know that the approach to sentencing drug traffickers in Hong Kong is based primarily on the quantity of dangerous drugsinvolved. That is, the narcotic quantity, not the whole mixture. So in your case, that 711 grammes is the appropriate figure.

The Court of Appeal in Hong Kong has laid down guidelines to sentencing courts to follow so that there is a measure of consistencybetween different cases in different courts.

So far as your case is concerned, you fall into a bracket of 600 to 1200 grammes of heroin, for which terms of 20 to 23 years’ imprisonmentare prescribed by the Court of Appeal before any aggravating or mitigating features are taken into account.

Aggravation, in your case, comes from the fact that this was international trafficking, which is treated as a more serious form ofthe offence, because you were trafficking the drugs into Hong Kong, and even if there had been an intention to re-export the drugs,they were brought into Hong Kong by that original trafficking, and it is that which gives rise to the menace to the community whichthose drugs represent.

The mitigation in your case comes mainly from your plea of guilty which you entered before the magistrate, and for which you willreceive a discount of one-third from the appropriate starting point for sentence.

Before taking into account that aggravating feature, I judge the appropriate starting point is 20 years’ imprisonment. I add oneyear in respect of the aggravation of the international element, bringing the drug into Hong Kong, which makes a starting point forsentence of 21 years’ imprisonment.

Having regard to your mitigation, and the one‑third discount to which I have referred already, the proper sentence is one of 14years’ imprisonment, and that is the sentence that I impose upon you.