HKSAR v. MUHAMMAD SALEEM

DCCC 72/2018

[2018] HKDC 1509

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 72 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 23.8 grammes of a solid containing 22.8 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at 2200 hours on 7 November last year the defendant boarded taxi TJ 3279 in Tsim Sha Tsui.  On reaching a police road block outside 23-25 Tai Nan Street in Mongkok, PC 7158 instructed the taxi to enter the checking area. 

3.  Inside the checking area SPC 34745 saw the defendant drop a white packet from his right hand onto the floor of the taxi behind the driver’s seat.   After asking the defendant to alight from the taxi SPC 34745 picked up the white packet, inside which was two re-sealable transparent plastic bags containing the cocaine.   

4.  Under caution the defendant admitted that he was taking the cocaine to Prince Edward for sale and said that was his first time selling dangerous drugs.

5.  The police also seized from the defendant two mobile phones and $225 cash. 

Mitigation

6.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Wong, including that the defendant was unemployed at the time and that he met an ex classmate who asked him to deliver the drugs. 

7.  I take into account that the defendant is only 17, 16 at the time of the offence.

8.  Section 109A of the Criminal Procedure Ordinance[2], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

9.  In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[3].    

10.  Although this is the first time the defendant has committed an offence relating to dangerous drugs, the defendant was sentenced to probation in 2014 for offences of dishonesty.  In September 2015 for breach of probation the defendant was resentenced to detention in a Detention Centre. 

11.  Mr Wong accepts that a sentence of rehabilitation is not appropriate. 

12.  After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate.  Notwithstanding the defendant’s young age, I am satisfied there are no exceptional circumstances warranting departure from the guidelines. 

Sentence

13.  The courts have equated for sentencing purposes cocaine with heroin[4].  In R v Lau Tak Ming[5]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

14.  Mr Wong submits a starting point less than 6 years is appropriate.  On a strictly mathematical approach a starting point of just over 5 years and 11 months would be appropriate for trafficking in 22.8 grammes of cocaine.  Taking into account the defendant’s young age and this is the first time he has committed an offence relating to dangerous drugs, I am satisfied a starting point of 5 years and 9 months’ imprisonment is appropriate. 

15.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 10 months’ imprisonment.