HKSAR v. SHAIKH SARFARAZ

DCCC 470/2024

[2025] HKDC 165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 470 OF 2024

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REASONS FOR SENTENCE

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1.  A 3 days’ trial has been fixed in this coming June, but the Defendant wrote to this Court to ask for an early day of hearing as he decided to change his plea to a guilty one.

2.  Today, the Defendant pleaded guilty to a charge of trafficking in dangerous drugs on 18 October 2023 namely:-

(a)  7.26g of ice

(b)  0.76g of cocaine

Summary of facts

3.  The Defendant is a Form 8 recognizance holder.

4.  At around 3:26pm on that day, a Police officer saw the Defendant moving a bicycle and acting furtively in Shanghai Street.

5.  The Defendant was intercepted and a search of the bicycle was conducted by the Police, the dangerous drugs in question was found under the seat of the bicycle.

6.  HK$12,780 was also found with the Defendant.

7.  The Defendant said under caution that he was the owner of the bicycle.

8.  The street value of the drugs was about HK$8,256 in total.

Criminal record

9.  The Defendant has 4 previous conviction records:-

(a)  2015 – breach of condition of stay

(b)  2017 – trafficking dangerous drugs – 2 months’ imprisonment

(c)  2018 – possession of dangerous drugs – 8 weeks’ imprisonment

(d)  2022 – Indecent assault – 4 months’ imprisonment.

10.  The Defendant was also ordered to be bound over for a period of 3 years in a sum of HK$2,000 for an offence of Possession of dangerous drugs in 2022.

Background of the defendant

11.  The Defendant is 50 years of age. As he is a form 8 holder, he is therefore officially unemployed in Hong Kong. He has no relative in Hong Kong. Prior to his present arrest, he lived in a sub-divided unit in Wing On House, Shanghai Street where he was arrested downstairs.

12.  The Defendant suffered from tuberculosis and diabetes, he was also addicted to cannabis.

13.  In his letter to the Court today, he said that he is very regretful for committing the present offence, he will return to India after he serves his sentence. He also asked this Court to take into account of his health condition especially his is a diabetic patient.

Sentence

14.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

15.  I applied the guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1] in sentencing.

Step 1: The applicable guideline tariff bands

16.  The first step requires the Court to assess the gravity of the offence by looking at the type and quantity of the drugs involved. In the present case, there are 2 types of dangerous drugs :-

(a)  7.26g of ice

(b)  0.76g of cocaine

17.  The guideline tariffs for ice is laid down in Ag v Ching Kwok Hung[2] and HKSAR v Tam Yi-chun[3] that :-

(a)  Given the quantity of 7.26g of ice, it falls into the sentencing bracket of 3 to 7 years.

18.  The guideline tariffs for cocaine is laid down in R v Lau Tak Ming[4] and AG v Rojas[5] (heroin traffic is also applicable to cocaine)  that :-

(a)  Given the quantity of 0.76g of cocaine, it falls into the sentencing bracket of 2 to 5 years.

Step 2 : The Defendant’s role and culpability

19.  The drugs were found under the bicycle seat, they were packed into 11 small packets which are for sell or re-distribution. The Defendant was found to have HK$12,780 with him. He was stopped just downstairs of where he lived and admitted that the bicycle belonged to him. I accept what the Defence told me that he was a street retailer and he was at “the lower end of the run”.

20.  The Defendant will be sentenced as a street retailer / trafficker, in such circumstances, the arithmetical approach to the guideline tariff will be adopted.

Step 3 – The relevant band within the guideline

21.  Given the role of the Defendant in the present case, I accept that the relevant bands in Ching Kwok Hung (ice)  and Lau Tak Ming (cocaine)  are applicable:-

(a)  7.26g of ice attracts a sentence of 5 years and 11 months

(b)  0.76g of cocaine attracts a sentence of 2 years and 3 months

22.  As there are 2 types of drugs involved, the Defence accepted that the combine approach is appropriate in sentencing.

23.  The base drug should be ice and the following test agreed between parties are as follow :-

(a)  Conversion test: 5 years and 11 months

(b)  Absurdity test: 6 years and 2 months

(c)  Ratio test: 6 years

24.  As such, I take 5 years and 11 months as the starting point and increase the starting point by 1 month to take into the account of the quantity of cocaine. The sentence arrives at 6 years (72 months).

Step 4 – Aggravating factors

25.  The Defence accepted that there are aggravating factors in the present case :-

(a)  The Defendant is a Form 8 holder

(b)  The Defendant has one previous record of trafficking in dangerous drugs (2017)  and he was in breach of a binding over order for possession of dangerous drugs.

(c)  There are 2 types of drugs in the present case.

26.  As such, there is basis for enhancement of sentence. I consider that a 6 months enhancement (2 months for each drug)  of the starting point is appropriate.

27.  The total sentence arrives at 78 months (72+6 = 78).

Step 5 – Mitigating factor

28.  The Defendant is 50 years old and committed the present offence because of financial pressure as he is a Form 8 holder and he is officially not allowed to seek employment in Hong Kong. The Defendant also asked to take into account of his health condition. As said in the case of Heny Jane Yusuph, personal circumstances will count for little, unless they are exceptional. Financial pressure cannot be regarded as a mitigating factor in a crime as serious as the present one. His medical condition can be treated and will be looked after in prison.

29.  I find the only meaningful mitigation is his guilty plea.

¹/₃ discount?

30.  That brings us to the issue whether the defendant is entitled to ¹/₃ discount or not.

31.  The Defendant changed his plea after a 3 days’ hearing days has been fixed in this coming June.

32.  In such circumstances, I disagree with the Defence that he should be given ¹/₃ discount. He indicated his guilty plea in November last year. As such, I will allow 25% reduction of the starting point.

33.  The final sentence for the Defendant after 25% discount, it comes down to 58 months and 15 days.

Step 6 – Totality

34.  The final stage of the sentencing process is to stand back and look at the overall sentence passed to make sure that it is fair and just. Taking into account of the circumstances of the offence and the submission on behalf of the defendant, I am of the view that a sentence of 58 months and 15 days is appropriate and is not out of proportion to the defendant’s overall criminality.

35.  As to the breach of the binding over order. I do not propose to execute the order as :-

(a)  The offence took place in 9/2021

(b)  The quantity was 0.05g of herbal cannabis

(c)  It is due to expire in a few weeks’ time

36.  All in all, it is significantly different in the nature of drugs and in terms of the quantity.

Sentence

37.  To this end, the final sentence I impose on the Defendant is one of 58 months and 15 days’ imprisonment.