HKSAR v. MD DELWAR

HCCC 198/2018

[2018] HKCFI 2522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 OF 2018

-----------------

------------------

--------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

--------------------------------------------

COURT:

Introduction

The defendant pleaded guilty to one charge of trafficking in dangerous drugs at committal. Today, he confirms his guilty plea and his agreement to the Summary of Facts before me. The dangerous drugs concerned were:

(a) 17 plastic bags containing 10.2 grammes of methamphetamine hydrochloride narcotic, commonly known as ‘Ice’;

(b) 30 plastic bags containing a total of 15.36 grammes of cocaine narcotic;

(c) 4 plastic bags containing a total of 2.56 grammes of ketamine narcotic;

(d) 4 plastic bags containing a total of 27.80 grammes of cannabis resin;

(e) 1 plastic bag containing traces of lysergide;

(f) 16 plastic bags containing a total of 93.29 grammes of herbal cannabis;

(g) 243 tablets containing a total of 47.08 grammes of 3,4-methylenedioxymethamphetamine, commonly known as “ecstasy”;

(h) 1 plastic bag containing 0.54 grammes of ecstasy narcotic;

(i) 11 capsules containing a total of 0.53 grammes of ecstasy narcotic; and

(j) 14 tablets containing a total of 0.02 grammes of alprazolam.

The Facts

Briefly stated, on 31 August 2017, a group of police officers saw the defendant entering a flat on Haiphong Road, Tsim Sha Tsui, with a key and they followed him. Inside the flat, on the bed on which the defendant was sitting, they found a rucksack next to the pillow and also a black plastic bag under the pillow. Inside the rucksack, the police found cash of HK$152,900. Inside the black plastic bag, the police found the aforesaid dangerous drugs, the subject matters of the charge, as well as an electronic scale and empty resealable plastic bags.

The total retail value of the dangerous drugs was estimated to be HK$66,377.

The Defendant’s Antecedent

The defendant is now aged 45. He is a national of Bangladesh. He is married with a daughter and a son respectively aged eight and five. His family is living in Bangladesh. The defendant claims that he was unemployed and that he was not a drug user.

According to the defendant’s criminal record, he had one court appearance in February 2006 with two convictions. One was a copyright offence for which he was sentenced to 8 months’ imprisonment and the other one was breach of condition of stay for which he was sentenced to a consecutive sentence of 2 months’ imprisonment. He was deported to Dhaka on 7 July 2006 after having served the sentence.

I am told by Mr Tracy that the defendant first came to Hong Kong legally in around 2000. I am further informed by Mr Tracy that the defendant entered Hong Kong again in 2013 and he remains here ever since as a non-refoulement claimant.

Sentence

It is now well-established that the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and is to be calculated mathematically: HKSAR v Kilima Abubakar Abbas [2018] HKCA 602. In the present case, I can see no reasons for departing from the mathematical starting point and Mr Tracy, counsel for the defendant, does not suggest the otherwise.

Based on the sentencing tariff laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking between 10 and 70 grammes gives rise to a sentence of 7 to 11 years’ imprisonment. Thus, by a mathematical approach and rounding off the figure, trafficking in 10.2 grammes of ‘Ice’ narcotic alone attracts a starting point of 7 years’ imprisonment.

The sentencing tariff for trafficking in cocaine follows that of trafficking in heroin: Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the applicable tariff is the one laid down in R v Lau Tak Ming [1990] 2 HKLR 370. Therefore, trafficking between 10 and 50 grammes would give rise to a sentence of 5 to 8 years. By a mathematical approach, trafficking in 15.36 grammes of cocaine narcotic alone attracts a starting point of 5 years and 5 months’ imprisonment.

According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, ketamine and ecstasy are not to be distinguished when it comes to sentencing guidelines for traffickers. Trafficking in 50 to 300 grammes would give rise to a sentence between 6 to 9 years. In the present case, by a mathematical approach and rounding off the figure, the combined quantity of ketamine and ecstasy narcotic is 50.71 grammes which alone attracts a starting point of 6 years’ imprisonment.

According to Attorney General v Tuen Shui Ming & Anor [1995] 2 HKC 798, trafficking in under 2,000 grammes of cannabis resin carries a sentence up to 16 months’ imprisonment. In HKSAR v Chor Lui [2001] 3 HKLRD 95, Lugar-Mawson J said that, although, there was no tariff for trafficking in herbal cannabis, the benchmark tariff sentence should be 4 months for under 2,000 grammes of herbal cannabis. Chor Lui, being a magistracy appeal is not binding on this court. However, what Lugar-Mawson J said in that case is helpful. In view of the relatively small quantities of cannabis resin (only 27.8 grammes) and herbal cannabis (only 93.29 grammes) as contrast with the tariff benchmark of 2,000 grammes, the respective starting points for trafficking in the two items would be in terms of months rather than years.

Turning to lysergide and alprazolam, in view of their very small quantities, in my assessment, they would not have any material bearing on the sentence and, therefore I will disregard them for sentencing purpose.

The Court of Appeal has laid down some guidance on sentencing in trafficking offences which involve a multiplicity of dangerous drugs. In the present case, there is no dispute that the proper approach to be adopted is the combined approach rather than the individual approach: HKSAR v Ko Ka Hing [2009] 4 HLKRD 856.

In order to arrive at a notional starting point for all the dangerous drugs concerned, I would follow what was done in the judgment of the Court of Appeal in HKSAR v Yau Ka Ming, (CACC 144/2013), mainly by first identifying a starting point for the three most potent dangerous drugs in this case which are ‘Ice’, cocaine and ketamine and ecstasy combined, and then adjust that notional starting point upwards to take also into account the cannabis resin and herbal cannabis and other aggravating features, if any, as present in this case.

Upon the request of this Court, Mr Cheung for the prosecution had helpfully prepared a sheet setting out the respective combined starting points for the total quantity of ‘Ice’, cocaine, ecstasy and ketamine in question based on the absurdity test, the conversion test and the ratio test as stated in HKSAR v Chan Yuk Leong, CACC 318/2013. I have checked the calculation and agree with the resultant figures. Mr Tracy has also prepared a helpful written submission setting out the relevant sentencing principles and case authorities, for which I am also obliged.

For the “absurdity test”, the total weight of the ‘Ice’, cocaine, ketamine and ecstasy narcotic concerned is 76.27 grammes. If all of them were ‘Ice’, then the mathematical starting point for trafficking in them would be 11 years and 1 month. For cocaine, it would be 8 years and 8 months. For ketamine, it would be 6 years and 4 months, but that would be absurd as it is even lower than the sentence of trafficking in the 10.2 grammes of ‘Ice’ alone.

Next, for the purpose of the “conversion test”, one starts with identifying the main or “more serious drug” in the case as described in HKSAR v Chan Ho Wai (CACC 129/2008) as the basis for conversion. As McMahon J said in that case, identifying what is the “more serious drug” in a given case involved the use of common sense.

In the present case, although the ‘Ice’ concerned is not of the largest quantity when compared with the other dangerous drugs, its proportion is still significant. One also has to put on balance that its potency is the highest among all the other dangerous drugs concerned. Looking at the matter in the round, I agree with the prosecution that the “more serious drug” in this case is ‘Ice’. For sentencing purposes, trafficking in 15.36 grammes of cocaine would be equivalent to trafficking in about 6 grammes of ‘Ice’, whilst trafficking in 50.71 grammes of ketamine would be equivalent to trafficking in about 7.5 grammes of ‘Ice’. Thus, by the “conversion test”, trafficking in the ‘Ice’, cocaine, ketamine and ecstasy concerned (which would be equivalent to trafficking in about 23.7 grammes of ‘Ice’) attracts a notional starting point of 7 years and 11 months.

Turning to the “ratio test”, the weight of the ‘Ice’ has a ratio of 13.4 per cent, the cocaine, 20.1 per cent and the ketamine and the ecstasy combined, 66.5 per cent. Thus, the “ratio test” would yield a notional starting point of 7 years and 5 months.

Based on the above, I would adopt a notional starting point of 7 years and 5 months’ imprisonment for trafficking in the ‘Ice’, cocaine, ketamine and ecstasy concerned. Next, taking into account the unlawful trafficking in the cannabis resin and herbal cannabis, in my view, the appropriate enhancement is one of 3 months. Therefore, the starting point for trafficking in all the dangerous drugs, before taking into account any aggravating features, is 7 years and 8 months.

Turning to aggravating features, in my view, there are three of them.

First, it is now established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered: see, for example, the case authority referred to in HKSAR v Yim Hung Lui Ricky (CACC 266/2011), at paragraph 11 of that judgment.

Secondly, whilst there is no evidence that the ‘Ice’ and ketamine would be mixed before sale, the possibility remained that a customer may obtain both ‘Ice’ and cocaine from the defendant. There was expert evidence referred to in HKSAR v Lan Chung Wai (HCCC 238/2001) (cited in HKSAR v Cheung Kwok Leung Lowence [2003] 3 HKLRD 542 at paragraphs 30 to 32) that a combination of methamphetamine and ketamine poses a greater harm to the abuser than either taken alone. The reference in Lan Chung Wai to methamphetamine was to both a crystalline form (‘Ice’), as well as the tablet form.

In my view, there should be a further upward adjustment from the starting point by 4 months for the two aforesaid aggravating features taken together leading to a sentence of 8 years’ imprisonment.

Lastly, there is the fact that the defendant was and is a non-refoulement claimant. The offence he committed was of a type which affects the very community which allows him to remain at liberty pending his claim being processed. The offence also has an obvious and significant impact on Hong Kong’s international reputation as a place of law and order. There is, therefore a serious breach of trust and privilege by the defendant who is not normally entitled to be in Hong Kong. There are ample case authorities that there should be enhancement of sentence for this aggravating feature. To name a few, see HKSAR v Mahabul Alam Khan (CACC 116/2016); HKSAR v Shah Syed Arif [2016] 4 HKLRD 664; HKSAR v Ali Saif [2018] HKCA 358; and more recently HKSAR v Hussain Abid [2018] HKCA 376. For this reason, I add another 6 months on top of the starting point of 8 years, making a sentence of 8 years and 6 months’ imprisonment before consideration of any mitigating factors.

I now turn to consider the mitigation put forward by Mr Tracy. For the defendant’s timely plea at committal, he is entitled to the customary one-third discount. This reduces the sentence to 5 years and 8 months.

Mr Tracy hesitates but feels duty bound to draw my attention to a draft affidavit prepared by Father John Wotherspoon, the original of which is said to have been filed but somehow has yet to reach me. In that affidavit, Father John surmises that the defendant is the victim of a set-up. With the greatest respect, the contents of the affidavit are such that I am not able to take into account for sentencing purpose. Mr Tracy, rightly, does not suggest the otherwise.

Apart from his timely plea, I can see nothing in relation to the defendant’s background or circumstances which can further reduce his sentence.

As such, the defendant is sentenced to 5 years and 8 months’ imprisonment.