HKSAR v. SHOHIDUL ISLAM

DCCC 796/2020

[2021] HKDC 227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 796 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Background

1.  The defendant has pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one count of possession of poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138.

Admitted facts

2.  At around 2:13 am on 15 June 2020, PC23316 (“PW1”) was on patrol at Elgin Street, Central, in Hong Kong.  PW1 saw the defendant walking out from a back alley at No. 55 Elgin Street holding a grey recycle bag while looking around suspiciously. PW1 intercepted the defendant outside No. 25 Elgin Street.

3.  The defendant was searched and inside the grey recycle bag carried by the defendant, 3 orange zipped bags containing a total of 9 white “Eclipse” plastic boxes, which contained the following items were found:-

(a)  6 transparent resealable plastic bags containing a total of 3.27 grammes of a solid containing 1.35 grammes of cocaine (Exhibit 1);

(b)  6 transparent resealable plastic bags containing a total of 4.42 grammes of a solid containing 3.62 grammes of 3,4-methylenedioxymethamphetamine (Exhibit 2);

(c)  2 transparent resealable plastic bags containing a total of 15 pieces of blotter paper containing traces of lysergide (Exhibit 3);

(d)  2 foilpacks containing a total of 2 tablets containing sildenafil (Exhibit 4);

(e)  5 tablets containing a total of 0.73 gramme of 3,4-methylenedioxymethamphetamine (Exhibit 5);

(f)  23 tablets and 0.03 gramme of tablet fragments containing a total of 2.90 grammes of 3,4-methylenedioxymethamphetamine (Exhibit 6);

(g)  24 transparent resealable plastic bags containing a total of 13.7 grammes of a solid containing 9.65 grammes of cocaine (Exhibit 7);

(h)  12 transparent resealable plastic bags containing a total of 8.34 grammes of a solid containing 2.5 grammes of cocaine and 3.2 grammes of ketamine (Exhibit 8);

(i)  12 empty transparent resealable plastic bags;

(j)  4 paper bags; and

(k)  One roll of adhesive tape.

4.  One transparent resealable plastic bag containing 2 transparent resealable plastic bags containing a total of 1.15 grammes of a solid containing 0.86 gramme of cocaine (Exhibit 9) was also found in the defendant’s right front trousers pocket.

5.  The Government Chemist subsequently confirmed the narcotic contents of Exhibits 1 to 9 above.

6.  Upon enquiry, the defendant said he did not know what Exhibits 1-9 were and his friend gave them to him.

7.  The defendant was then arrested.

8.  The defendant had two mobile phones and cash of HK$4,859 and €50 on him.

9.  The estimated street value of the dangerous drugs seized was around HK$26,723.

10.  The defendant is a Form 8 recognizance holder.

11.  At the material times:-

(a)  The defendant was in possession of the dangerous drugs seized (Exhibits 1-3 & 5-9) for the purpose of unlawful trafficking (Charge 1); and

(b)  The defendant had in his possession 2 tablets containing sildenafil (Exhibit 4) which was a poison included in Part 1 of the Poisons List (Charge 2).

Mitigation

12.  The defendant is from Bangladesh, single and now 36 years old.  He has been an asylum seeker in Hong Kong since 2007.  He has two previous convictions of different nature which were customs and immigration related offence.   Last conviction was recorded in 2011. 

13.  Everything that can be said on the defendant’s behalf has been put forward.  His best mitigation is his plea of guilty.

14.  It is recognised by the defendant that it is an aggravating factor when an asylum seeker commits a serious offence in Hong Kong and is convicted.  It is an aggravating factor that will enhance the starting point for the drug trafficking charge.

Charge 1: Drug trafficking guidelines

15.  Trafficking in a dangerous drug is a serious offence.  On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.  Ms Herbert for the defendant has also taken me through all the relevant authorities with guidelines for sentencing those that traffic cocaine, MDMA, ketamine and LSD.  She submits that the traces of LSD is of a de minimis amount and can be disregarded as far as sentencing is concerned.

16.  Where there is a cocktail of drugs in one charge of unlawful trafficking, there are two approaches to sentencing in this situation, namely the individual approach and the combined approach.  Often it is the combined approach that produces the more realistic sentence.  Individual approaches often produce sentences that far exceeds the criminality of the defendant’s crime.  It would be sensible to take a combined approach here where most of the drugs will be converted into the quantity of either the most serious or the most prevalent of the drugs.  Here it would be cocaine.  I have referred myself to R v Lau Tak Ming [1990] 2 HKLR 370 as well as HKSAR v Addallah Anwar Abbas [2009] 2 HKLRD 447.

17.  I have also referred to the more recent case of HKSAR v Islam S M Majharul [2020] HKCA 300.  In this case, the Court of Appeal again reiterates the methodology in sentencing those trafficking two or more different types of drugs.  The methodology of this combined approach is to calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drug.

18.  In HKSAR v Chan Yuk Leong CACC 318/2013, the Court of Appeal held that the court should take the most serious drug and adjust it upwards for the other drugs.  The court there discussed three means of cross-checking whether the sentence was manifestly excessive.  The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test. 

19.  In the present case, the dangerous drugs give a total of: (i) 14.36g of cocaine; (ii) 7.25g of MDMA; (iii) 3.2g of ketamine; and (iv) traces of LSD. According to HKSAR v Addallah Anwar Abbas, 14.36g of cocaine may result in 5 years and 4 months’ imprisonment.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, 7.25g of MDMA may result in 3 years and 4 months’ imprisonment.  According to also Hii Siew Cheng, 3.2g of ketamine may result in 2 years and 5 months’ imprisonment.  I agree to disregard traces of LSD for sentencing purpose given its trivial amount.

20.  I agree to adopt the combined approach in order to produce a realistic sentence. 

21.  The defendant said that 0.86g out of 14.36g of cocaine was separately packed and in the defendant’s pocket, hence for self-consumption, which is about 6%.   Parties are well aware of the principles on self-consumption: HKSAR v Cheung Wai Man [2019] 1 HLRD 817, i.e., there has to be (i) credible and reliable information and (ii) significant proportion of dangerous drugs before a reduction of sentence can be considered.  However, sentence is not a straight jacket.  I must not ignore that 0.86g of cocaine is separately packed.  It is not uncommon that this kind of Form 8 recognisance holder receive small quantity of dangerous drugs as remuneration.  After all, “6%” has no significant impact on sentence.  The prosecution is neutral on this claim.  I am prepared to accept the claim of 0.86g of cocaine for self-use.  As a result, 14.36g minus 0.86g equals to 13.5g, which ends up in about 63 months’ imprisonment. 

22.  Hii Siew Cheng applies to both MDMA and ketamine, hence 7.25g of MDMA plus 3.2g of ketamine equals to 10.45g which ends up in about 48 months’ imprisonment, which is also equivalent to about 7g of cocaine.  When applying the combined approach with a conversion calculation, this “as if 7g of cocaine” should be added to 13.5g real cocaine, arriving at a total of 20.5g cocaine, which results in about 69 months’ imprisonment.

23.  There is one further aggravating factor and that is the defendant is not a Hong Kong resident, but a guest here awaiting the determination of refugee status and resettlement in another country if successful (Form 8 recognisance holder).  Hong Kong is entitled to expect such a person to remain law abiding during the course of this process, and it is an aggravating factor that the defendant has committed such a serious offence.  Therefore, I will enhance the starting point of now 69 months by a further 2 months, i.e. 71 months.

24.  I have taken into account mitigation, the defendant’s plea at the earliest opportunity and everything said on his behalf.  I reduce it by one-third to reflect his plea.  When that discount is applied, it is reduced to 47 months’ imprisonment (3 years and 11 months).

Charge 2: Part I Poison

25.  Usual sentence for possession of Part I poison is financial penalty. Here, only two tablets of sildenafil were found.  I was told that the defendant could afford a fine in the region of HK$2,000. Hence, I order a financial penalty of HK$2,000, to be paid within 7 days, in default, 7 days’ imprisonment, to be consecutive to Charge 1. 

Conclusion

26.  The overall sentence for the defendant is 3 years and 11 months’ imprisonment and a fine of HK$2,000.