HKSAR v. FARHAN ASLAM

DCCC 43/2021

[2021] HKDC 564

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 43 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of possession of a Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance[2] (charge 2) and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38 (1)(b) of the Immigration Ordinance[3] (charge 3).

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendant on 10 May 2021.  In summary at around 11:33 a.m. on 17 September 2020 the police raided Room No. 3559, Flat A5 on the 3rd Floor of Block A, Chungking Mansions in Tsim Sha Tsui.  The defendant was the only person found inside the room.

3.  The police executed a search warrant.  Underneath one of the beds the police found a black shoe box containing the following items:

(i)  One transparent re-sealable plastic bag containing 109 grammes of cannabis in herbal form;

(ii)  One transparent re-sealable plastic bag containing 7.30 grammes of a solid containing 3.71 grammes of cocaine;

(iii)  One transparent re-sealable plastic bag containing 3.54 grammes of a solid containing 2.91 grammes of 3, 4-methylenedioxymethamphetamine (“ecstasy”);

(iv)  One transparent re-sealable plastic bag containing 0.90 gramme of a solid containing 0.16 gramme of cocaine;

(v)  One black re-sealable plastic bag containing 0.69 gramme of a crystalline solid containing 0.69 gramme of methamphetamine hydrochloride (“ice”);

(vi)  One piece of paper containing traces of lysergide[4];

(vii)  One transparent re-sealable plastic bag containing twenty-eight tablets containing a total of 3.49 grammes of 3, 4-methylenedioxymethamphetamine (“ecstasy”); and

(viii)  One transparent re-sealable plastic bag containing six tablets and three tablet fragments containing tramadol, a Part 1 poison[5]; one tablet and one tablet fragment containing a total of 0.25 gramme of ecstasy.

4.  The police also found in the shoe box one transparent re-sealable plastic bag containing sixteen black re-sealable plastic bags; two electronic scales; one transparent re-sealable plastic bag containing 0.83 gramme of a solid which did not contain any dangerous drugs and one tablet which did not contain any dangerous drug.

5.  Under caution the defendant stated, inter alia, that he sometimes smoked the cannabis; he came to Hong Kong in April 2020 having taken a flight from Pakistan to Beijing and then a connecting flight to Shenzhen after which he walked to Hong Kong. 

Mitigation

6.  In passing sentence, I have carefully considered the oral and written submissions of Ms Moosdeen including that the defendant who is 38, married with five children in Pakistan, came to Hong Kong in 2020 to seek asylum[6].  

Guidelines

7.  In HKSAR v Tam Yi Chun the Court of Appeal recast the sentencing guidelines for trafficking in ice[7].  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

8.  The courts have equated for sentencing purposes cocaine with heroin[8].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[9].  The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2-5 years’ imprisonment. 

9.  In Secretary for Justice v Hii Siew Cheng[10]the Court of Appeal laid down guidelines for trafficking in ketamine and ecstasy.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years. 

10.   In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing[11]. Where the quantity of cannabis resin is under 2,000 grammes sentence after trial is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

11.  In calculating the sentence, I disregard the traces of lysergide which I am satisfied does not add to the culpability of the defendant in trafficking in ice, cocaine, ecstasy and cannabis.  

An assessment of the defendant’s role and culpability

12.  Ms Moosdeen explains that the defendant having no contacts in Hong Kong had to sleep on the streets and was forced to rummage for food and lived off the generosity of restaurants who gave him leftovers.  A Pakistani male called “Lucky” befriended the defendant and treated him to food and drinks and also shared drugs with him, including cannabis, MDMA (ecstasy) and ice. 

13.  The night before the defendant was arrested Lucky and the defendant had a drinking and drug session.  Lucky then invited the defendant to sleep in his home and told the defendant to wait for his instructions as to what to do next.  The defendant was aware the defendant kept drugs in his room and was prepared to follow Lucky’s instructions as to the drugs[12].

14.  When the court sought to clarify the role of the defendant, Ms Moosdeen stated the defendant was not a storekeeper and was not looking after the drugs, only waiting for instructions from Lucky on what to do.  

15.  After taking further instructions from the defendant Ms Moosdeen told the court that according to the defendant’s recollection after Lucky told him he could sleep there that night Lucky said words to the effect that he would come back later; he would call the defendant and someone would come to collect all the drugs and that the defendant should give the drugs to that person. 

16.  The defendant was arrested before Lucky made the phone call.   Ms Moosdeen submits that all the drugs belonged to Lucky and that the defendant believed that Lucky had taken advantage of him and intended to make use of him[13].

17.  I have real reservations the role of the defendant was simply waiting for instructions and that by chance he just happened to be the only person in the room when the police executed the search warrant.   I nevertheless proceed on the basis that the defendant himself was not the dealer.  I am satisfied that the defendant’s role is no less serious than the storekeeper which is the lowest rank in the trafficking hierarchy upon which the guidelines are based[14].  

18.  I am satisfied there are no grounds to depart from the guidelines.

Starting point

19.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 0.69 grammes of ice would be just over 3 years and 3 months’ imprisonment; for 3.87 grammes of cocaine would be 3 years and 2 months’ imprisonment; for 6.65 grammes of ecstasy would be just over 3 years and 3 months’ imprisonment and for 109 grammes of cannabis in herbal form would be 4 months’ imprisonment.  

20.  Applying what has been referred to as the “absurdity test”, having first excluded from the calculation the cannabis, a starting point of 9 years and 8 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just under 7 years and 1 month imprisonment. 

21.  I am satisfied that the “combined” approach to sentence is appropriate and take ice, the most potent drug albeit the smallest quantity, as the “base” drug to calculate the starting point.  Taking ice as the base drug I adopt a starting point of 3 years and 3 months’ imprisonment.

22.  Again excluding from the calculation the cannabis, by applying the “conversion test” a sentence ranging between just under 4 years and just over 5 years would be arrived at depending on which drug was converted.  Applying the ratio test the overall starting point would be about 4 years and 8 months’ imprisonment.

23.  Taking these matters into account in calculating a reasonable and realistic increase to the starting point together with the aggravating factor that the trafficking involved three serious dangerous drugs, ice, cocaine and ecstasy, I increase the starting point by 1 year and 9 months to 5 years’ imprisonment[15].  I do not increase the starting point by reason of the fact the defendant was also trafficking in cannabis. 

Own use

24.  The defendant asks the court to take into account that part of the MDMA (ecstasy) and part of the cannabis found by the police was for personal consumption[16].

25.  In support Ms Moosdeen relies on a letter from the Correctional Services Department showing that on admission to Lai Chi Kok Reception Centre the urine sample collected from the defendant was positive for cannabis[17].  The urine sample was however negative for amphetamines.  Ecstasy (MDMA) is an amphetamine. 

26.  In oral submission Ms Moosdeen explains that the claim for personal consumption is based on the defendant’s belief that Lucky may have shared with him part of the MDMA (ecstasy) and the cannabis, as he had that night and previously.  

27.  This is speculation and in my view forms no basis upon which to lay foundation for a claim for personal consumption.  Even if this was a valid claim for personal consumption I am satisfied this would make no difference to sentence[18]. 

28.  The urine sample collected from the defendant on admission to Lai Chi Kok Reception Centre being negative for amphetamines, I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the ecstasy (MDMA) was for the defendant’s own consumption[19]. 

29.  Clearly the cannabis does not form a significant proportion of the dangerous drugs for the purpose of sentencing.  The starting point for the trafficking having been based on the ice and the enhancement being for trafficking in three serious dangerous drugs, ice, cocaine and ecstasy and not the cannabis, a small part of cannabis for own consumption makes no difference to the sentence[20]. 

30.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 4 months’ imprisonment.

Possession of Part I poison

31.  I am satisfied that a short custodial sentence is appropriate.  I am satisfied the proper starting point after trial is 3 weeks’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 weeks’ imprisonment. 

Unlawful remaining

32.  In R v. So Man King[21]the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months’ imprisonment (starting point of 22½ months) should be used as the basic guideline unless there are strong humanitarian considerations.  

33.  In oral submission Ms Moosdeen expresses sympathy for the defendant having fled his homeland because his life was in danger and his struggle in Hong Kong during the pandemic. 

34.  The defendant first came to Hong Kong in 2009 when he made a claim for asylum.  The defendant’s father however persuaded the defendant to return home to Pakistan in 2014.  The defendant says he soon realised this was a trap and moved to live in another city[22].

35.  I note that notwithstanding his life was in apparent danger the defendant remained in Pakistan for six years before returning to Hong Kong during which time the defendant’s wife gave birth to two more children, who are now 3 and 5 years of age[23].

36.  Ms Moosdeen informs the court that the defendant only filed his asylum claim after he was arrested in September 2020; the claim has been rejected and that the defendant is now waiting the result of his appeal against the rejection of his claim. 

37.  On being asked by the court if the reason the defendant returned to Hong Kong was to seek asylum why he did not make his claim on arrival but only after he was arrested around five months later.  Ms Moosdeen said the defendant was ignorant. I rejected this explanation.  I am satisfied the defendant having filed a claim for asylum in 2009 knew exactly what to do. 

38.  Whilst sympathetic to everyone who has suffered during the pandemic I find no strong humanitarian considerations in this case to depart from the guideline.   

Totality

39.  I am satisfied a concurrent sentence is appropriate for possession of the poison. 

40.  Unlawfully remaining is separate and distinct from the trafficking charge.  In HKSAR v. Tong Fuk Sing the Court of Appeal said that, unless, for example, there exist some compelling circumstances, such as strong humanitarian reasons, the sentence for the immigration offences should normally be imposed consecutively to the sentence imposed for the offence which accompanies it[24].  

41.  I am satisfied there are no strong humanitarian reasons.  I order the sentences to be served consecutively.  I am satisfied a total sentence of 4 years and 7 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[25]. 

Sentence

42.  The defendant is convicted and sentenced as follows:

Charge 1 – 3 years and 4 months’ imprisonment.

Charge 2 – 2 weeks’ imprisonment concurrent to charge 1; and

Charge 3 – 1 year and 3 months’ imprisonment consecutive to charges 1 & 2.

The total sentence to be served by the defendant is 4 years and 7 months’ imprisonment.