HKSAR v. MBYE MUHAMMED

HCMA 488/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 488 OF 2017

(ON APPEAL FROM ESCC 866/2017)

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REASONS FOR JUDGMENT

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BACKGROUND

1.  The appellant was convicted on his own plea on one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.  The quantity of dangerous drug involved is two plastic bags containing a total of 1.36 grammes of a solid containing 0.93 gramme of cocaine.  He was sentenced on 2 August 2017 to 8 months’ imprisonment.  His appeal against sentence was dismissed.  I now give my reasons. 

2.  The appellant first appeared in court on 20 March 2017 and no plea was taken, and the matter was adjourned for a few occasions.  The appellant pleaded not guilty on 7 July 2017 and a trial date was fixed for 4August 2017.  However, one week later on 14 July 2017, the defence wrote to the court and indicated a guilty plea.  A plea date was fixed for 19 July 2017.  The original trial date of 4 August 2017 was vacated.  On 19 July 2017, the appellant pleaded guilty and the magistrate called for a DATC report as required under section 54A of the Dangerous Drugs Ordinance.  DATC was not recommended as the appellant was not considered a dangerous drugs dependent.

3.  On 2 August 2017, the magistrate used a 12 months’ imprisonment starting point.  He gave a 25% discount for the appellant’s guilty plea.  A sentence of 9 months’ imprisonment was passed.

4.  The appellant initiated a review of sentence under section 104 of the Magistrates Ordinance, Cap 227.  On 18 August 2017, the magistrate further reduced the sentence by one month to 8 months’ imprisonment.

BRIEF FACTS OF THE CASE

5.  In summary, on 17 March 2017, the police were patrolling in Ho Lee Commercial Building, Nos 38-44, D’Aguilar Street, Central (“the Building”). Shortly before 23:39 hours on 17 March 2017, the police spotted the appellant acting furtively at the staircase of the 1^st Floor of the Building.

6.  Whilst at the landing platform between the 1^st and 2^nd Floors, the appellant was seen retrieving two packets of white powder between the staircase and a wooden plank.  It was subsequently determined to be two packets containing a total of 1.36 grammes of a solid containing 0.93 gramme of cocaine.

7.  The police searched the appellant and found in his pocket the two packets of white powder.  The appellant was then arrested.  Under caution, the appellant admitted that the two packets were for his own consumption.

APPELLANT’S CRIMINAL RECORD

8.  The appellant has three previous convictions. The details are:

(i) 28 April 2015, trafficking in dangerous drugs, 12 months’ imprisonment;

(ii) 28 April 2015, trafficking in dangerous drugs, 10 months’ imprisonment, 4 months consecutive to the sentence referred to in 8(i) above;

(iii) 2 June 2016, possession of dangerous drugs, 8 months’ imprisonment.

GROUNDS OF APPEAL

9.  The appellant’s initial Grounds of Appeal were attached to his Form 102 dated 24 August 2017.  Further Grounds of Appeal dated 20 September 2017 were lodged in court on 25 September 2017.

10.  The appellant’s Grounds of Appeal can be summarized as follows:

Ground 1: Disparity in Sentence

11.  The appellant stated that he is aware that a lot of prisoners have been given lesser sentences even though they have larger quantities of dangerous drugs. 

Ground 2: Compassionate and Humanitarian Grounds

12.  The appellant has a wife and son.  The son was born in Hong Kong.

13.  The wife of the appellant has breast cancer.

14.  The appellant and his family used to receive assistance of HK$4,500 per month.  However, as the appellant was imprisoned, the International Social Services Hong Kong Branch (“ISS”) would not pay the same amount.  This means the appellant’s wife and son cannot remain to live in the same place.

15.  The appellant’s wife informed him that the landlord had changed the lock as the landlord was owed too much money.

16.  The appellant’s wife and baby are living in the back staircase of Chung King Mansion, in Tsim Sha Tsui.

17.  The appellant’s mother and daughter had passed away from injuries suffered in a traffic accident.

18.  The appellant stated that the magistrate found the hardship the appellant was facing was real and not insignificant. 

19.  The appellant has had time to reflect in prison.  He would like to beg for mercy as he would like to take care of his wife and son.

20.  The appellant maintains that he is a changed man.

DISCUSSION

Re: Ground 1

21.  The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment [see: HKSAR v Mok Cho Tik [2001] 1 HKC 261, at 267B-E].  The Court of Appeal further made the point that if an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.

22.  Therefore, I am of the view that 12 months’ imprisonment was the appropriate starting point in the present case. 

23.  I agree that the cases referred to by the appellant depended on their own facts.  Furthermore, they are not cases that have undergone appellate scrutiny.  Therefore, their value is minimal.

Re: Ground 2

24.  The prosecution accepts that the magistrate did have a discretion to reduce a sentence based on mercy.  However, mercy has to be exercised by considerations which are supported by the evidence and which make an appeal not only to sympathy but to well-balanced judgment. 

25.  At the sentence hearing on 2August 2017, the magistrate was told that the appellant’s mother and daughter had a serious car accident.   The mother sadly passed away.  The daughter was in a coma.  The magistrate decided to take 12 months’ imprisonment as the starting point, even though he was of the view that given the appellant’s criminal record, a higher starting point was warranted.  Thus, the magistrate clearly in effect did give a reduction of sentence on this humanitarian factor.  The magistrate took a starting point of 12 months’ imprisonment and reduced it by one-quarter as the appellant pleaded guilty between the fixing of the trial date and the first day of trial.  A final sentence of 9 months’ imprisonment was reached.

26.  In the review hearing on 18 August 2017, the magistrate was further informed that the appellant’s daughter had also passed away.  The magistrate clearly recognized that this was an additional humanitarian factor and further reduced the sentence by one month.  The final sentence is now 8 months’ imprisonment.

27.  An additional humanitarian ground is advanced by the appellant for this appeal, namely, as he is in prison, the ISS has reduced the monthly assistance to his family (ie himself, his wife and their son).  This meant his wife and son cannot live in their previous apartment and now has to live in the staircase of Chung King Mansion. 

28.  In this regard, I agree with the prosecution that one would expect this problem can be solved by the appellant’s wife asking ISS to provide suitable accommodation for her and the son.  Hence, this would not qualify as a humanitarian consideration. 

29.  Further, as stated by McWalters J (as he then was) in HKSAR v Bayanmunkh [2012] 2 HKC 233, at paragraph 13, the adverse effect of imprisonment upon an offender’s family would not normally be taken into account in sentencing. 

CONCLUSION

30.  Accordingly, for the reasons set out above, the appellant’s appeal against sentence was dismissed.