HKSAR v. MUHAMMAD AFZAL

HCMA 119/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 119 OF 2010

(ON APPEAL FROM ESCC 5029/2009)

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J U D G M E N T

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1.  The Appellant pleaded guilty in the Magistracy to 3 charges of Trafficking in Dangerous Drugs.  Each charge related to a small quantity of cocaine and Charge 3 related in addition to a quantity of cannabis resin.

2.  He was sentenced to 9 months’ imprisonment on each of those charges.  One month of the sentence on Charge 3 was ordered to run concurrently with that on Charge 1, and 2 months of the sentence on Charge 4 was ordered to run concurrently with the sentences on Charges 1 and 2, which made a total term of 24 months’ imprisonment.

3.  The original sentence had been 27 months in total but on the application of the Appellant, the Magistrate reconsidered his sentence on a review and reduced it to 24 months in total.

4.  The facts which were admitted by the Appellant showed there were three “controlled buys” on three separate occasions.  At the time these offences were dealt with the Appellant already had previous convictions for two Possessions of Dangerous Drugs charges.

5.  The Magistrate had noted The Queen v Lau Tak-ming [1990] 2 HKLR 370 guidelines which apply in respect of cocaine.  The range of sentence was 2 to 5 years for the narcotic quantity on each charge and he took a lower starting point of 18 months’ imprisonment on each.  He disregarded the quantity of cannabis resin for the purposes of sentencing.

6.  A Sivan hearing was held before the Magistrate prior to sentencing and 50% discount was given for the guilty plea and other mitigating factors which were considered by the Magistrate.

7.  At the review, counsel for the Appellant complained about the proportion of sentence, vis-à-vis the 3 years total available to the Magistrate on sentence in the Magistracy.  The Magistrate acceded to the argument of counsel and reduced the sentences by a further 3 months.

8.  These were serious offences committed by the Appellant who was here as a torture claimant.  The Magistrate took into account the facts of the case and the assistance given by the Appellant.  I note from his record that these offences were committed very shortly after the Appellant was released from jail.

9.  Today before me, the Appellant has relied on the same grounds of mitigation as were put before the Magistrate.  I am not satisfied that the sentence was wrong in principle or manifestly excessive.  Accordingly, this appeal against sentence is dismissed.