HKSAR v. HASSAN MD

DCCC 1034/2023

[2024] HKDC 2024

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1034 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The Defendant originally pleaded not guilty to a charge of trafficking in dangerous drugs.  After one and a half days in this trial scheduled for 3 days, whilst still in the midst of the prosecution case, the Defendant changed his plea to that of guilty.

Facts

2.  The prosecution and the defence agree to adopt the original Summary of Facts prepared for plea dated 30 October 2023.  The defendant accepts such facts for his sentencing.

3.  At all material times, a room (‘Room 4’)  was located inside Flat A, 5^th Floor, Nos. 5-5A Humphreys Avenue, Tsim Sha Tsui (the ‘Flat’).

4.  At 07:50 pm on 27 April 2023, PC 14919 (PW1)  spotted D on the 5^th Floor of Nos. 5-5A Humphreys Avenue, Tsim Sha Tsui.  At the time, D was walking towards the Flat.  D took out a chain of keys from his trouser pocket and opened the door of the Flat.  D then entered the Flat.

5.  At around 07:26 pm on 28 April 2023, D again attended the 5^th floor of Nos 5-5A Humphreys Avenue.  Upon body search, a chain of four keys including 1 key to the Flat (the ‘Flat Key’)  and 1 key to Room 4 (the ‘Room Key’), a transparent re-sealable plastic bag and cash of HK$120 were found inside D’s trouser pockets.

6.  Using the Flat Key and the Room Key, the Police unlocked doors to the Flat and Room 4 and entered into Room 4.  Upon search of Room 4, the Police seized inter alia the following items:-

(a)  10 plastic bags containing a total of 6.64 grammes of a crystalline solid containing 6.61 grammes of methamphetamine hydrochloride (a salt of methamphetamine)  (‘E1’);

(b)  8 plastic bags containing a total of 5.59 grammes of a solid containing 4.18 grammes of 3,4-methylenedioxymethamphetamine (being a compound structurally derived from N-alkyl-α-methylphenethylamine by substitution in the ring with an alkyl-enedioxy substituent)  (‘E2’);

(c)  1 plastic bag containing 0.93 grammes of a crystalline solid containing 0.93 grammes of methamphetamine hydrochloride (a salt of methamphetamine)  (‘E3’);

(d)  1 plastic bag containing 0.68 grammes of a solid containing 0.03 grammes of ketamine (‘E4’);

(e)  4 plastic bags containing a total of 2.22 grammes of a solid containing 1.46 grammes of cocaine (‘E5’);

(f)  3 plastic bags containing a total of 2.01 grammes of a crystalline solid containing 2.01 grammes of methamphetamine hydrochloride (a salt of methamphetamine)  (‘E6’);

(g)  2 plastic bags containing a total of 1.34 grammes of a solid containing 1.02 grammes of 3,4-methylenedioxymethamphetamine (being a compound structurally derived from N-alkyl-α-methylphenethylamine by substitution in the ring with an alkyl-enedioxy substituent)  and 0.03 grammes of ketamine (‘E7’);

(h)  One re-sealable plastic bag containing 12 empty re-sealable plastic bag;

(i)  One re-sealable plastic bag containing 25 empty re-sealable plastic bags;

(j)  a digital scale;

(k)  two metal spoons;

(l)  one electronic mixer; and

(m)  one pair of scissors.

7.  On 28 April 2023, D was arrested for ‘Trafficking in dangerous drugs’.

8.  The Government Chemist subsequently confirmed the narcotic contents of E1-7 (as stated in the Charge Sheet).

9.  At all material times, D possessed E1-7 for the purpose of trafficking.

Mitigation

10.  The Defendant is 43 years of age.  He is a Form 8 recognizance holder. He had a record for possession of a dangerous drug in 2018.

11.  Fully in compliance with this Court’s directions, the prosecution has done a clear and complete calculation based on the Individual Approach and the Combined Approach with the Absurdity, the Conversion, and the Ratio Tests. Scarcely in compliance with this Court’s directions, the defence has tendered only an obscure and incomplete calculation.  The defence suggests a starting point of 66 months, which is the result of approximation rather than calculation.  It follows that this way of suggestion is not helpful to court.  It is unfortunate that defence counsel is not making efforts to assist the Court or vouch for his client’s interest in Court in a responsible way.  According to the prosecution’s calculation, the Ratio Test yields a starting point of 6.2 years, which is the lowest among all.  This is the lowest possible starting point based on the quantity of cocktail dangerous drugs.

12.  The defence does not dispute that being a Form 8 recognizance holder committing a crime, such as trafficking in dangerous drugs, affecting the community of Hong Kong is an aggravating factor in the Defendant’s sentence. The defence asks for an enhancement of not more than 3 months on the ground that Form 8 recognizance holders are unemployable and have become easy targets to take risk for traffickers.

13.  I understand from HKSAR v Saif [2018] HKCA 358 that the starting point of 9 years 9 months for a dangerous drug trafficker was increased by 1 year due to this factor. The Court of Appeal stated that an increase would not be meaningful in the District Court or the High Court if less than 6 months.

14.  In HKSAR v Islam Azhaurul [2020] HKLRD 644, there were four kinds of dangerous drugs.  The Court of Appeal observed that because in such a situation the trafficker was able to cater to a far wider market than the trafficker in only one kind of drug, it warranted an enhancement of 6 months’ imprisonment.

15.  The defence submits that the Defendant had changed his plea to one of guilty as soon as the prosecution provided fresh evidence to the defence after one and a half day of trial on 19 November 2024. The defence asks for a discount in sentence as much as possible. I have the opportunity of reading the prosecution’s written reply to this submission.  The so-called fresh evidence is only the prosecutor’s summary of what the DNA traits were found on various drug packets seized in the premises.  The primary material, i.e., the DNA Report and the Government Chemist Certificate had been served on the defence 2 months before trial.  It is clear from my reading both documents in Court today that DNA traits were found on various identified drug packets in the premises. The defence claims in mitigation that the documents were not intelligible to the defence for their lack of pagination.  In this connection, the defence had by two letters informed the prosecution of this matter in an attempt to agree to a set of admitted facts proposed by the prosecution but the prosecution had not done anything to help the defence understand such aspect of the case.  I do not think the prosecution could be expected to interpret to the defence the meaning of documents or how to read the documents served on the defence so that the defence can admit facts for the purpose of trial.  The prosecution shall bear the consequence of evidence unintelligible to the Court.  In sum, I do not agree that there was any fresh evidence to lead the Defendant to change his plea.

Sentencing this Defendant

16.  I take a starting point of 6 years 3 months based on the quantity of the dangerous drugs, increase it by 3 months for there being four kinds of dangerous drugs for a wider market, and another 6 months due to the Defendant being a Form 8 recognizance holder.  The overall starting point is 7 years (or 84 months).

17.  Despite the guilty plea tendered late in time, I give a discount of 14 months to the Defendant.  There are no other mitigating factors.  His sentence is 70 months.