HKSAR v. RANJON DAS

DCCC 260/2024

[2025] HKDC 101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 260 OF 2024

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs, namely 4.8 grammes of a solid containing 3.45 grammes of cocaine, 1.95 grammes of a solid containing 1.51 grammes of what is commonly known as “MDMA” or “Ecstacy” and 4.45 grammes of a solid containing 3.74 grammes of ketamine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  I found the defendant guilty as charged after he admitted the Summary of Facts.

The Facts

3.  At around 11:45pm on 23 November 2023, while DPC16674 (PW1)  was conducting an anti-drug operation in the vicinity of Queen’s Road Central, he saw the defendant acting furtively outside The Center, No 99 Queen’s Road Central, Central (“The Center”). PW1 thus intercepted the defendant for enquiry.

4.  A body search was conducted on the defendant during which he covered his private part with his hands. PW1 took the defendant to the staircase of The Center for a further search, which revealed the following drugs hidden in the defendant’s underpants:

(1)  One plastic bag containing 8 plastic bags containing a total of 4.8 grammes of a solid containing 3.45 grammes of cocaine (Exhibit 1);

(2)  3 plastic bags containing a total of 1.95 grammes of a solid containing 1.51 grammes of Ecstacy (Exhibit 2); and

(3)  7 plastic bags containing a total of 4.45 grammes of a solid containing 3.74 grammes of ketamine (Exhibit 3).

5.  At around 11:55pm on the same day, the defendant was arrested for trafficking in dangerous drugs.  Under caution, he claimed that the drugs were for his consumption.

6.  When the defendant was searched in the police station, he was found to have with him cash of HK$11,700 and 2 mobile phones.

7.  In a later video-recorded interview under caution (“VRI”)  with the police, the defendant stated, inter alia, the following:

(1)  Exhibit 1 to 3 were used for his consumption;

(2)  Exhibit 1 to 3 were cocaine; and

(3)  He purchased Exhibit 1 to 3 from a person at the price of HK4,000, HK$1,800 and HK$2800 respectively at night on Wednesday in Wan Chai.

8.  The narcotic contents of Exhibit 1 to 3 were subsequently confirmed by the Government Chemist.

9.  The estimated street value of all the drugs was in the region of HK$7,577.5 (HK$4809.6 for cocaine and HK$2767.9 for ketamine).

Background and Criminal Record

10.  The defendant is now 47 years old. He was educated in Bangladesh up to Primary 6 level.  He came to Hong Kong in 2007 from Bangladesh and he is a Form 8 holder.  Prior to his arrest, the defendant relies on allowance for living at a rate of around HK$3,000 per month.

11.  The defendant’s wife aged 39, housewife and daughter aged 16, student currently live in Bangladesh.  The defendant’s mother, who used to take care of the defendant’s wife and daughter, passed away in December 2024 while the defendant was in custody.

12.  The defendant has got three previous convictions: two of breach of condition of stay in 2003 and 2006 and one of illegal remaining in 2007.

Mitigation

13.  I have taken into account everything urged in mitigation by Mrs Remedios on behalf of the defendant.  It was said that the defendant has shown genuine remorse by pleading guilty to the charge.  Mrs Remedios, in mitigation, submitted that the strongest mitigating factor in this case is the guilty plea of the defendant which he tendered at the first available opportunity.  The defendant has shown substantial remorse through his plea of guilty.

14.  In her written mitigation submission, Mrs Remedios said that part of the dangerous drugs involved were for the defendant’s own consumption as he told the police under caution that the drugs involved were for his own consumption.  She urged the court to be as lenient to the defendant as possible so that he could return to Bangladesh as early as possible to take care of his family after serving his sentence.

Sentencing considerations

15.  Trafficking in dangerous drugs is a serious and reprehensible offence.  The law relating to the sentencing of drug trafficking offenders was refined and clarified by the Court of Appeal in a case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.

16.  With these general principles in mind, I now turn to the six steps laid down in that judgment.

17.  The first step is to identify the relevant guideline band applicable to the quantity of dangerous drug concerned.  There are three types of drugs involved in the trafficking charge, namely 3.45 grammes of cocaine, 1.51 grammes of Ecstacy and 3.74 grammes of ketamine.

Cocaine

18.  Cocaine and heroin are equated for sentencing purposes and the tariffs fixed for heroin in R v Lau Tak Ming and others [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342.  For the quantity of 3.45 grammes of cocaine, the relevant guideline band is up to 10 grammes for which the sentence is between 2 and 5 years’ imprisonment.

MDMA and ketamine

19.  In the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of MDMA and ketamine.  Since the same tariff apply to MDMA and ketamine, I will add up the weight of MDMA and ketamine. Given the total quantity of MDMA (1.51g)  and ketamine (3.74g)  involved, that is (1.51g + 3.74g = 5.25g), which fits into the band of 1 to 10 grammes with a starting point of between 2 to 4 years.

20.  The second step is to assess the defendant’s role and culpability based upon the evidence.  It was urged on behalf of the defendant that there was no evidence that the defendant was dealing in dangerous drugs to others (ie actual / direct trafficking).  Mrs Remedios cited the judgment of Herry Jane Yusuph where at paragraph 60, the words expressed were:

“… Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically.”

21.  Macrae VP then went on to say at paragraph 61 that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper.

22.  Coming back to the present case, the facts admitted by the defendant revealed that he was intercepted by the police at around midnight and his presence there was found to be suspicious.  Apart from the drugs seized which were found inside his underwear, cash of HK$11,700 and 2 mobile phones were found on him.  Under caution, he only said all the drugs were for his own consumption.  Having considered the authority cited and having regard to the circumstances of this case, though suspicious, I am prepared to accept that the defendant acted as a courier.

23.  The third step is to identify where in the relevant band the defendant comes.  In accordance with the sentencing bands that have just been identified above, for the quantity of drugs involved, the starting points on a straight arithmetic calculation, according to my calculation, are 36 months for 3.45 grammes of cocaine, and 35 months for 5.25 grammes of MDMA and ketamine (after adding up).

24.  In a case where a defendant trafficking in more than one type of drug, the sentencing court may adopt a combined approach and cross-check it by 3 tests: “absurdity test”, “conversion test” and “ratio test” (see HKSAR v Chan Yuk Leong CACC 318/2013 (unreported, 8 April 2014)  and HKSAR v Islam SM Majharul [2020] 3 HKLRD 146).

25.  Mrs Remedios, counsel for the defendant has very helpfully calculated the respective arithmetical starting point of each drug for my reference, using the absurdity test, the conversion test and the ratio test as explained in Chan Yuk Leong.  These results coincided with those under my calculations.  In the instant case, the more serious drug in terms of potency is cocaine and should be used as the base drug in the calculation.

26.  For the “absurdity test”, the total weight of the various narcotics is 8.7 grammes.  If all of them were “cocaine”, then the mathematical starting point for trafficking in them would be 55 months.

27.  For the ‘conversion test’, converting the MDMA/ketamine involved (5.25 grammes)  in the present case to cocaine, the total quantity of drugs would be equivalent to 6.5985 grammes of cocaine (ie 3.45 grammes + 3.1485 grammes).  Mrs Remedios worked out mathematically that for 6.5985 grammes of cocaine, that would attract a notional starting point of about 47.75 months.

28.  Turning to the ‘ratio test’.  By weight, the “cocaine” has a ratio of 39.66% and “MDMA and ketamine” 60.34%.  Thus, the “ratio test” would yield a notional starting point of about 48.81 months.

29.  Based on the above and having applied the three cross-check tests, I am of the view that a notional starting point of 48 months for trafficking in the cocaine, MDMA and ketamine concerned would be just and appropriate.

30.  The fourth step requires me to consider whether there are, at present, any aggravating factors which might require me to enhance the starting point. Mrs Remedios has helpfully referred me to the case of HKSAR v Ali Saif [2018] 6 HKC 19 where the defendant was a Form 8 holder at the time he committed the offence.  This is an aggravating factor for the purpose of sentencing, and the enhancement in a trafficking in dangerous drugs case is not expected to be less than 6 months’ imprisonment in order to achieve a meaningful deterrent effect.  For this reason, I add 6 months on top of the notional starting point of 48 months, resulting in 54 months.

31.  Another aggravating feature is the multiplicity of drugs. The defendant trafficked in three types of dangerous drugs, namely cocaine, MDMA and ketamine. As held in Islam SM Majharul, trafficking in two or more dangerous drugs is an aggravating factor (also see HKSAR v Yim Hung Lui Ricky, CACC 266/2011)  Therefore, I further enhance the notional starting point by 3 months for there being three kinds of dangerous drugs for a wider market.  The overall starting point is 57 months.

32.  Now I proceed to deal with the defendant’s claim of having part of the drugs involved for his self-consumption.

33.  I told Mrs Remedios that without any evidence and based on the facts admitted, I was not prepared to accept that the defendant would have any significant portion of the drugs for his own consumption.  Mrs Remedios said there was no need to hold a Newton hearing and she raised no further submission in this regard.

34.  It is trite law that if a “significant proportion of the dangerous drugs was intended for the consumption of the defendant and not for trafficking”, the court has a discretion to grant a discount in sentence on this basis.  However, in HKSAR v Lau Siu Fung (劉紹豐) also known as Lau Siu Tong, CACC 56/2017, the Court of Appeal said in paragraph 12 of the judgement:

“… given that it is only where “a significant proportion” of the drugs in question are for a defendant’s own consumption, and where such contention “may well make a difference to sentence” (see HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69), a bare assertion from the Bar table will seldom be sufficient unless the contention is accepted by the prosecution or the facts and circumstances are plainly consistent with the assertion. Even if evidence is forthcoming to support such an assertion, the larger the quantity, the less likely it is that a claim of own consumption will reach the threshold of “a significant proportion” of the drugs, so as to make any difference to sentence: see HKSAR v Yeung Shek Yung (unreported, CACC 314/2016, 3 July 2017)” (Emphasis added)

35.  Based on the authority cited above and the evidence before me, I do not consider the defendant to be entitled to any reduction for his claimed self-consumption of part of the drugs.

36.  The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little.

37.  Having fully considered the mitigation put forward by Mrs Remedios, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea.  After deducting the customary one-third discount to plea, the sentence is reduced to 38 months’ imprisonment.

38.  The last step is to observe the overall sentence to ensure that it is fair, just, and balanced in all the circumstances of the offence and of the offender.  After considering all the factors, I am of the view that the ultimate sentence of 38 months’ imprisonment is appropriate and proportionate to the defendant’s overall culpability.

39.  The defendant is sentenced to 38 months’ imprisonment.