HKSAR v. ABDUL SAMEER AND ANOTHER

DCCC 866/2021

[2022] HKDC 1069

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 866 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Introduction

1.  There are a total of 3 Charges on the Charge Sheet involving 2 defendants as follows:

Charge 1: Trafficking in Dangerous Drugs, against D1 only Narcotics involved:

(i)  Cannabis resin 49.1 grammes (P12); and

(ii)  3,4-methylenediosymethamphetamine (MDMA) 18.5 grammes in 100 tablets (P17).

Charge 2: Trafficking in Dangerous Drugs, against both D1 and D2 Narcotics involved:

(i)  Cannabis in herbal form 914 grammes (P5);

(ii)  Bromodimethoxyphenethylamine (NBOMe)3.14 grammes in 164 capsules (P21);

(iii)  Bromodimethoxyphenethylamine (NBOMe)3.94 grammes in 4.93 grammes of a solid (P27 and P32);

(iv)  3,4-methylenediosymethamphetamine (MDMA)  32.2 grammes in 74 tablets (P23);

(v)  3,4-methylenediosymethamphetamine (MDMA)  0.07 grammes in 0.20 grammes of a solid (P34);

(vi)  Ketamine 3.87 grammes in 4.92 grammes of a solid (P25);

(vii)  N,N-dimethyltryptamine (DMT)  3.24 grammes in 3.37 grammes of a solid (P29);

(viii)  Lysergide (LSD)  0.06 grammes of material containing this drug (P36); and

(ix)  Psilocin 2.18 grammes contained in 725 grammes of plant materials (P54).

Charge 3: Possession of Part I Poisons, against both D1 and D2 involving 112 grammes of a solid containing flualprazolam (P39).

All Charges were alleged to have taken place on 26 November 2020 at Flat B14, 1^st Floor, Ming Tak Building, Nos. 4-16 Ping Fu Path, Kwai Chung (“the premises”). Another person WASEEM Hamza was also named as a participant in all the Charges.

2.  D1 pleaded guilty to all 3 Charges against him and admitted to the Summary of Facts presented by the prosecution.  He is convicted of all 3 Charges. 

3.  D2 admitted to trafficking in part of the dangerous drugs particularized in Charge 2, viz, P5, but denied involvement in the remaining narcotics and pleaded not guilty to Charge 3.  I treated D2 to have pleaded not guilty to Charge 2 also.  Prior to the delivery of my Verdicts on D2, I ordered that the Charge Sheet be amended by adding Charge 4, which is an alternative to Charge 2 but against D2 only, and referred to only P5, the 914 grammes of cannabis in herbal form.  There was no objection by either party and D2 readily pleaded guilty to this Charge 4. D2 was acquitted after trial of Charges 2 and 3.

4.  D1 now stands to be sentenced on Charges 1 to 3 while D2 stands to be sentenced on Charge 4.

Facts of case

5.  This case arose from a “Control delivery operation” conducted by the Customs & Excise Department. On 25 November 2020, at the Customs Examination Hall, Air Mail Centre of Hong Kong International Airport at Chek Lap Kok, a Customs officer intercepted a postal packet containing P12 sent from Poland to the premises with D1 named as the recipient.  On the next day another postal packet containing P17 sent from the Netherlands to the premises with “Abdul Sam” named as the recipient was also intercepted.

6.  In the evening of 26 November 2020 a “Control delivery operation” was mounted.  A Customs officer, disguised as a postman, delivered the 2 packets to the premises.  D1 opened the door and acknowledged himself to be the recipient of them.  He was then arrested.  D2 was also found inside the premises.

7.  Upon a search of the premises by the Customs officers, the narcotics particularized in Charge 2 and the Part I poison particularized in Charge 3 were found.  Some other exhibits which are relevant for consideration were found on the working table.  They included a vacuum sealing machine (P42), an electronic scale (P43), a pair of scissors (P44), a pair of forceps (P45), a can of air freshener (P46)  and some empty transparent plastic bags (P47).  Also found on this table was a rental receipt (P48)  which indicated that WASEEM Hamza, the other person named in the Charges, was the tenant of the premises.

8.  D1 admitted under caution that he assisted WASEEM to receive the postal packets for $500-600 per packet and packaging the cannabis for $600 per day while D2 admitted that he was there to assist WAZEEM and D1 in packaging P5 only, for $600 - 700 per day.

9.  D1 further assisted the Customs officers by making a phone-call to WASEEM, leading the latter to come to the premises and was also arrested.  Upon arrest WASEEM was found to be in possession of some dangerous drugs.  He was charged for possession of them and dealt with separately. 

10.  WASEEM was not charged with the offences in this case as no further assistance had been forthcoming from D1 and the Department of Justice considered that there is insufficient evidence to join WASEEM in the present case.  According to the prosecution, the assistance provided by D1 was of limited use as the identity of WASEEM was already known, as his name appeared in the rental receipt (P48).

11.  There is no evidence as to the estimated street value of the narcotics seized in this case.

Background of defendants and Mitigations

D1

12.  D1 is 21 years old, born in Hong Kong on 4 January 2001.  He was 19 at the time of the offences.  He is single and resided with his parents and 3 other siblings at a public housing unit in Tung Chung.  After completing his secondary education he was enrolled in a foundation course at HKU SPACE which costs $22,000 per semester.  He was responsible for paying the tuition fees himself with some assistance from his father.  He worked as a part-time delivery worker earning $700 per day and applied the earnings to pay for the school fees.  He has 1 previous conviction for Possession of Dangerous Drugs in May 2019 and was fined $2,000.

13.  Ms.  Mohamed, for D1, submitted that D1 was a good student while at school.  He was awarded scholarship for his academic achievements and applied the money to his school fees.  Unfortunately, he began to take up smoking cannabis under bad peer influence.  WASEEM was an old friend whom he had not seen for 3 years.  He accepted an offer by WASEEM to receive the dangerous drugs and packaging them to earn quick money.  D1 is now remorseful.  With the full support from his family, he will turn a new leaf after serving out the sentence to be imposed on him.

14.  A number of different types of narcotics are involved in this case.  Citing HKSAR v Lam Chi Wa[1] Ms Mohamed asked the Court to add the total of the active ingredient of the drugs together to arrive at a notional starting point.  She also asked the Court to adopt the “combined approach” as stated by the CA in HKSAR v Wan Lau Mei[2] and HKSAR v Islam SM Majharul[3] in assessing the appropriate sentence in this case.  Citing HKSAR v Lo Sze Tung Stephanie[4], Ms.  Mohamed submitted that the assistance provided by D1 should qualified him to receive up to 40% discount in conjunction with his guilty pleas.

15.  Ms.  Mohamed made meticulous calculations according to the 3 tests as stipulated by the CA in HKSAR v Chan Yuk Leong[5] for Charge 1 and Charge 2 respectively.  She advocated 4.4 years with some upward adjustment for Charge 1 and 5.8 years with some upward adjustment for Charge 2.  She also urged the Court to take totality principle into account in arriving at the final sentence for D1.  She also submitted HKSAR v Herry Jane Yusuph[6] and asked the Court to follow the 6-steps approach laid down by the CA.

D2

16.  D2 is 25 years old, born in Hong Kong on 13 December 1996, and was 23 years old at the time of the offences. He is single and resided with his parents and 3 siblings in a public housing unit in Tsz Wan Shan.  He attained education up to diploma level.  He worked as a forklift driver at the airport before his arrest for the present offences.  He has 2 previous convictions in April 2017 and November 2018, both for Possession of Dangerous Drugs, and was fined on both occasions.  In April 2019, for another offence of Possession of Dangerous Drug for which no conviction was recorded, he was sentenced to DATC.  I was informed by the defence that all his previous convictions were concerned with cannabis.

17.  Ms Crebbin, for D2, submitted that D2 had been in custody for this case for over 7 months.  He had pleaded guilty to Charge 4 and is entitled to 1/3 discount.  Applying the tariff in HKSAR v Tuen Shui-ming[7], 912 grammes of herbal cannabis would attract a sentence of 4 to 6 months.  She urged the Court to pass a sentence which would enable D2 to be released immediately.

Sentence

D1

18.  This case involved multiple types of narcotics, viz, cannabis both resin and in herbal form, MDMA, NBOMe, ketamine, DMT, LSD and psilocin.  Some of them are familiar to the Courts but some are not.  There are tariff cases on cannabis[8], MDMA and ketamine[9]. However, no tariff has been set by the CA on NBOMe, DMT, LSD and psilocin.

19.  On these rare narcotics, the prosecution called Dr.  LAI Tai-sum, Tony, a practicing psychiatrist with expertise on synthetic drugs, to assist the Court.  His expertise was not challenged by Ms.  Mohamed.  Dr.  LAI submitted 2 expert reports (P79 and P80)  and gave oral testimony in Court on the issue.  He stated that drug dependency involved 2 aspects, physical and psychological.  Psychological dependency is more difficult to deal with and would lead to more long-term damage to the user as hallucination experience would lead to serious consequences, including physical harm to the user himself and others.  Such dependency could last for months or even years.

20.  Dr.  LAI explained the nature and clinical effects of the narcotics involved in this case.  On the issue of drug potency, it was his expert opinion that NBOMe is similar to MDMA, ecstasy or ketamine.  DMT could be compared with LSD with 80% potency when on high-dosage, which is the common form of human consumption.  For psilocin, its potency is similar to LSD.  LSD is in the middle range of potency like MDMA, with Methamphetamine Hydrochloride (ICE)  the most potent drug and cannabis the least in the scale of potency.

21.  Accepting the expert opinion of Dr.  LAI, I will treat NBOMe, DMT, LSD and psilocin to be of similar potency as MDMA and ketamine, and the tariff as contained in Hii Siew-ching[10] is applicable to these types of drugs. 

22.  Although the 2 packets of narcotics were delivered to the premises only on the day of arrest, they were obviously part of the drugs to be dealt with by D1 together with those listed in Charge 2, in which P54 was a packet received by D1 before that date. I will consider the final sentence by treating all narcotics involved in the 3 Charges as one lot.

23.  With these observations in mind, the total narcotics involved in this case against D1 are as follows:

(i)  cannabis - 49.1 grammes resin and 914 grammes in herbal form;

(ii)  a total of 67.2 grammes of narcotics of similar potency including MDMA, NBOMe, ketamine, DMT, LSD and psilocin. If all were to be treated as a single drug, the quantity falls within the 50 to 300 grammes bracket which attracts a sentence of 6 to 9 years’ imprisonment.

24.  In Yusuph[11], while laying down the 6-steps approach, the CA also pointed out that sentencing guidelines were not straitjackets and catered for a discretionary element and a discretionless starting point based upon quantity alone was not the correct approach.  At the same time, the CA re-iterated that in serious offences like trafficking in dangerous drugs, denunciation, deterrence and punishment are far more important so that personal circumstances carry little weight in terms of mitigation.

25.  Given the circumstances of this case, I agree with Ms.  Mohamed that the combined approached as laid down by the CA in HKSAR v Yip Wai-yin[12] would be more appropriate in assessing the sentence.  I will also bear in mind the calculations submitted by Ms.  Mohamed under the “absurdity test”, the “conversion test” and the “ratio test”.  With the above observations in mind, I now assess the sentences for each Charge.

Charge 1

26.  Of the 2 types of drugs involved, MDMA is more potent and I will use it as the base drug.  The quantity involved is 18.5 grammes, which falls within the 10 to 50 grammes bracket attracting a sentence of 4 to 6 years.  I will adopt 4 years 3 months as the starting point.  I will add 3 months to cater for the cannabis resin.  I adopt 4 years 6 months as the starting point for this Charge. 

Charge 2

27.  All the types of drugs involved in this Charge except herbal cannabis are of similar potency with the same tariff in Hii Siew-ching applicable, but they are after all different types of narcotics.  MDMA has the highest quantity, viz., 32.27 grammes.  I will use it as the base drug.  This quantity falls within the same 10 to 50 grammes bracket.  I will adopt 5 years 3 months as the starting point.  I will add 9 months to cater for the other types of narcotics, making a starting point of 6 years for this Charge.

Overall sentence

28.  As I have stated above, the 2 Charges were committed at the same time and the narcotics involved were to be treated as the same haul.  The sentences for the 2 Charges should run concurrently.

29.  There are 2 main aggravating factors in this case.  First, multiple drugs are involved.  This has long been accepted as an aggravating factor warranting an upward adjustment of the starting point.  For this factor, I will add 4 months to the starting point.

30.  The second aggravating factor is that an “international element” is involved.  In HKSAR v CHUNG Ping Kun[13] , the CA stated that as a broad guideline, for trafficking involving up to 250 grammes of ICE, an enhancement of 6 months for this factor would be warranted.  However, that case involved a much more potent drug than the present case.  Also, in HKSAR v Ali Qasim[14] the CA pointed out that there is a tangible distinction between the actual importer, and one who was receiving a postal package from overseas on behalf of others.  The latter is, generally speaking, of lesser culpability as the offender was generally aiding and abetting someone else’s act of importation.  D1 belonged to the latter category.  With such observations in mind, I will add 2 months to the starting point for this factor.

Charge 3

31.  For this Charge I will adopt 3 weeks as the starting point.  This offence was committed at the same time as, and did not add much to the criminality of, the other more serious Charges.  The sentence should run concurrently with the other 2 Charges.

Totality

32.  The total starting point for the 3 Charges is therefore, 6 years 6 months.

33.  D1 pleaded guilty to all 3 Charges and is entitled to a full 1/3 discount, reducing it to 4 years 4 months.

34.  Upon arrest, D1 did assist the Customs officers by calling WASEEM, resulting in the latter coming to the premises and arrested, and eventually prosecuted for possession of some dangerous drugs found on him upon arrest.  It may well be that, as the prosecution has submitted, the assistance is of little use to the authority as the identity of WASEEM was already exposed, but D1 did provide some useful assistance.  Therefore, following the principles as discussed by the CA in LO Sze Tung Stephanie[15], I will further reduce the sentence by 3 months for this factor.

35.  The total sentence for D1 for the 3 Charges is therefore 4 years 1 month, and to be arrived at as follows:

Charge 1: 4 years 6 months as starting point, added 6 months for the aggravating factors to 5 years, reduced to 3 years 4 months for the guilty plea and further reduced to 3 years 1 month for the assistance provided. The sentence is to run concurrently to Charge 2.

Charge 2: 6 years as the starting point, added 6 months for the aggravating factors to 6 years 6 months, reduced to 4 years 4 months for the guilty plea and further reduced to 4 years 1 month for the assistance provided.

Charge 3: 3 weeks as the starting point, reduced to 2 weeks for the guilty plea. The sentence is to run concurrently to Charge 2.

Total sentence for D1: 4 years and 1 month’s imprisonment

D2 – Charge 4

36.  For D2, he pleaded guilty to Charge 4, which involved 914 grammes of herbal cannabis.  This falls within the under 2,000 grammes bracket which attracts a sentence of up to 16 months[16]. Bearing in mind that the tariff is set for cannabis resin which is 4 times more potent than herbal cannabis, I adopt a starting point of 9 months, reduce it to 6 months for the guilty plea.  For Charge 4, D2 is sentenced to 6 months’ imprisonment.