HKSAR v. ZAHIR IKHLAQ AHMAD

DCCC 3/2024

[2025] HKDC 284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 3 OF 2024

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REASONS FOR SENTENCE

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1.  In these proceedings, the defendant, Zahir Ikhlaq Ahmad faced two counts of “trafficking in dangerous drugs”. Upon his plea and admission of facts, he is convicted of both counts.

2.  Both offences took place on 8 May 2023.  The 1^st count involved a direct sale of cocaine to an undercover agent.  The 2^nd count concerned the drugs found in the defendant’s vehicle; they consisted of 0.45 grammes of ketamine, and 13 plus tablets of MDMA, otherwise known as ecstasy. 

1^st count

3.  In the morning on the 6^th day of May 2023, the defendant engaged in a conversation with PW1, who, unbeknownst to the defendant, was a police officer in plainclothes.  During the conversation, the defendant claimed that he could supply dangerous drugs to PW1 at a price.  In the conversation by WhatsApp messages that followed, the defendant offered to sell to PW1. 30 grammes of cocaine at the cost of $24,000.

4.  On the 8^th day of May 2023, after the defendant handed over a bag of cocaine and received the marked money, PW1 revealed his identity and arrested the defendant.  It was subsequently confirmed that the bag handed to PW1 contained 14.9 grammes of cocaine. 

2^nd charge

5.  After the defendant’s arrest, the police searched his vehicle and found one bag containing 0.45 grammes of ketamine, 14 tablets and some powder containing 2.44 grammes of a drug commonly known as MDMA. 

6.  Apart from the defendant’s admission in court, his previous conversations with PW1 and the fact that the drugs were in the packages, and the quantity involved, there was no direct evidence to prove that the drugs in the defendant’s possession were for sale.  I take the view that they are distinct offences on sentencing. 

7.  The Hong Kong Court of Appeal has on numerous occasions set out and confirmed the sentencing guidelines for trafficking in dangerous drugs.  Both the defendant and the prosecution took no issue on the correctness of the guidelines as set out by the defendant’s counsel. 

8.  Trafficking in cocaine in the present quantity (ie 14.9 grammes)  warrants a sentence order 64 months, see R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.  As the present quantity falls within the band of 10 to 50 grammes, and the sentencing order set out was within 5 to 8 years. 

9.  The defendant was the actual trafficker.  He sold the dangerous drugs after he had a conversation with the undercover police officer.  It is different from a simple search case, the present case warranted a higher starting point of 66 months.

10.  In respect of Charge 2, the sentencing guideline for trafficking in ketamine is identical to that of trafficking in MDMA.  See Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  Therefore, for the sake of simplicity, I would consider the sentence as if the defendant was trafficking in a total quantity of 2.89 grammes of MDMA.

11.  Such quantity falls within the band of 2 to 4 years’ imprisonment which, after calculating, should attract a sentence of 29 months.  As the 2 counts are distinct offences, they should be ordered to run consecutively, coming up to 95 months; which would not only stretch the limit of my jurisdiction, it would seem too harsh under the Principle of Totality.  I therefore order 3 months of the 2^nd count to run consecutive to the 1^st, to a total of 69 months’ imprisonment as a starting point. 

Mitigation

12.  The defendant is 24 years old.  He worked as a labourer in the construction site making $15,000 a month.  He had been the sole financial support of his parents.  After his arrest, his parents had gone back to Pakistan.  He committed the present offence because of financial pressure.  Which even the defence counsel conceded was not a valid mitigating factor. 

13.  The defendant also had two previous convictions involving eight charges, none of which is of a similar nature to the present case.  While the court would not further punish him for his previous transgressions, he could not expect exceptional leniency from this court for his age and previous record. 

14.  The only valid mitigating factor is that he pleaded guilty to both counts.  Therefore, in line with the directions of the Court of Appeal, I will reduce his total sentence from 69 months to 46 months’ imprisonment.