HKSAR v. MOHAMMED SHABIR

HCCC 18/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 18 OF 2016

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

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COURT:

Here is my sentence and the reasons for it.

The defendant, a 36 year old Hong Kong-born male of Pakistani extraction went to trial before me and the jury on an amended indictment containing two counts of trafficking in dangerous drugs, being Count 1, in an amount of 1.1 grammes of methamphetamine hydrochloride or “Ice”, and Count 2, in an amount of 24 grammes of the same drug. He had originally been charged with a third count of possession of 3.92 grammes of “Ice”, and 0.3 grammes of herbal cannabis, but he pleaded guilty to that count prior to arraignment and being convicted of it, that count was, by agreement, severed from the indictment. I will refer to it as the 3rd count, though on the original indictment, it was Count 2. His sentencing for that latter offence was still awaiting the completion of his trial on the remaining two counts.

At the end of that trial, the jury found the defendant not guilty of trafficking in a dangerous drug on Count 1, but guilty of possession of the 1.1 grammes of “Ice”. The jury were unable to arrive at a verdict in respect of the larger amount of drug, the subject of Count 2.

The offence set out in Count 2, I understand, is likely to be the subject of a further trial of the defendant. But even given that, in my view, the defendant should now be sentenced for the two offences of possession of which he has been convicted. To wait until any further trial is concluded would require the defendant’s sentence to be delayed for too long a period.

I might add that given the defendant’s prior conviction or convictions for drug trafficking and the circumstances of this case, a custodial sentence is appropriate.

The facts of the possession offence is the subject of counts 1 and of the 3rd count were as follows. On 7 July 2015, police received anonymous information that a motor vehicle parked in Jaffe Road in Wan Chai and owned by the defendant contained an amount of dangerous drugs. That evidence formed part of the defence case, that the defendant had been set up or framed. Police officers were dispatched to the location and the defendant was intercepted as he attempted to get into the motor vehicle.

Both the defendant and the vehicle were searched. In a wallet carried by the defendant was found a plastic bag containing the 1.1 grammes of “Ice”, the subject of Count 1. And under the front passenger seat of his motor vehicle was found another plastic bag containing 24 grammes of the “Ice”, the subject of Count 2, being the count upon which the jury were unable to arrive at a verdict.

Following his interception and arrest at Wan Chai, the defendant was taken to premises occupied by him and at least one other in Yuen Long, and in his bedroom was found the drugs, the subject of what I have referred to as the 3rd count.

Given that the defendant was convicted only of the possession of drugs, I requested a report as to his suitability for detention for the purposes of rehabilitation in a Drug Addiction Treatment Centre. That report has now been made available to me and copied to counsel. By that report, the defendant, after examination, was found not to be a drug addict, and was found thereby to be unsuitable for admission into a Drug Addiction Treatment Centre, and accordingly I proceed to sentence.

In my view, given the circumstances of the defendant’s possession of these drugs, a custodial sentence is required. So far as the defendant’s possession of the 1.1 grammes of “Ice” referred to in Count 1 is concerned, an appropriate starting point of sentence would be 12 months’ imprisonment. Given that the defendant was in possession of these drugs in a public place, and was at one point talking with a group of other people in Jaffe Road, there was a moderate degree of risk that some part of the drug might be obtained by another person. Accordingly, I enhance the starting point of sentence by 3 months, that arrives at a final starting point of sentence of 15 months’ imprisonment.

The defendant had indicated at trial that he was prepared to plead guilty to the offence of possession of the dangerous drugs, the subject of Count 1, and I proceed on the basis that he is entitled to his full discount in that regard. There is no other mitigation of any substance, and the defendant is accordingly sentenced to 10 months’ imprisonment for the offence.

So far as the offences subject of the 3rd count is concerned, the defendant’s premises consisted of his own bedroom in a building in Yuen Long occupied by at least one other individual. When police arrived there, the defendant’s bedroom was unlocked. The charged drugs were in a box on a table in the room, and there were items in view in the unlocked room consistent with the smoking of “Ice”.

I effectively sentence the defendant on the basis of his possession of the “Ice” only. The quantity of herbal cannabis also found in the premises is too small to have any significant impact on sentence. A proper starting point of sentence is 12 months’ imprisonment. Given the circumstances of the defendant’s possession of the “Ice”, which included what appears to have been a communal “Ice” smoking pot, the latent risk of others having access to the drugs is greater than in the 1st count, even though they were found in his private premises. I enhance the starting point of sentence by 9 months’ imprisonment. That arrives at an enhanced starting point of sentence of 21 months’ imprisonment. Allowing for his plea of guilty, which again is the only mitigation of substance available to the defendant, that reduces the sentence to one of 14 months’ imprisonment.

Taking into account the totality of sentence, I order that 6 months of the sentence imposed in respect of the drugs, the subject of Count 1 be served consecutively to the sentence imposed in respect of the 3rd count offence. That results in a total sentence of 1 years 8 months’ imprisonment.

I note that the defendant has been in custody for nearly 23 months since his arrest while awaiting trial. Accordingly, subject to the question of bail, he is entitled to immediate release.