HKSAR v. KHAN ANJUM

DCCC 268/2021

[2021] HKDC 1414

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 268 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

Facts

2.  At 4:48pm on 15 November 2020, police officers were on duty at the rear staircase, 1^st Floor, Kam Bo Building, Nos. 2-8 Tung Lok Street, Yuen Long, New Territories.  They saw the defendant walking up the rear staircase from Ground Floor.  Upon seeing the police officers, the defendant turned around and walked back down.  Police officers thus intercepted the defendant for a search.

3.  Upon search, a total of 300 sealed plastic straws packed in 30 small resealable plastic bags were found on the defendant.  These 300 plastic straws contained a total of 45.8 grammes of a mixture containing 34.5 grammes of heroin hydrochloride. 

4.  The defendant was arrested for “trafficking in dangerous drugs”.  He made no response under caution.

5.  In a subsequent video-recorded interview, the defendant admitted under caution that:

(1)  he picked up the dangerous drugs seized near a minibus stop opposite to Tung Lok Street, Yuen Long. He knew they were dangerous drugs but did not know the type. He planned to hide them for sale later;

(2)  he went to Kam Bo Building with the intention of keeping the dangerous drugs there; and

(3)  he was not a drug abuser, nor drug dealer. He had never dealt with dangerous drugs before.

6.  On 16 November 2020, the defendant showed the police where he picked up the dangerous drugs at Fook Tak Street minibus stop the previous day.  The defendant indicated that he picked them up under a bench. 

7.  House search was conducted and nothing suspicious was found.

8.  The estimated street value of the drug seized was about $53,769.

9.  At the material times, the defendant possessed the drug seized for the purpose of unlawful trafficking.

Mitigation

10.  The defendant is aged 28 and single.  He came to Hong Kong to live with his father in around 2012.  He has a clear record in Hong Kong.  Prior to the arrest, he worked as a part-time truck delivery man earning about $10,000 per month.  Due to his previous drug addiction problem, he left home and had not contacted his family for the past 6 years.

11.  In mitigation, it was submitted that the defendant suffered from serious injuries during two trips back to Pakistan in 2013 and 2016, namely injury to his left eye and a gunshot wound to his right chest area.  Defence counsel urged this court to grant a small discount for the defendant’s clear record and the hardship that he has suffered due to his eye and chest injuries.

12.  The drug involved is 34.5 grammes of heroin.  According to the sentencing guidelines for trafficking in 10 to 50 grammes of heroin, the sentence ranges from 5 to 8 years’ imprisonment.

13.  Applying the arithmetic calculation to the sentencing guidelines, I agree that the starting point for trafficking in 34.5 grammes of heroin should be 6 years 10 months’ imprisonment.

14.  I also agree with counsel’s submissions that the facts do not disclose any aggravating factors which justify upward adjustment of the starting point.

15.  As far as the defendant’s pre-existing injuries are concerned, the documents show that the defendant did not attend follow up of his left eye injury after late August 2017 and had not complained about his chest injury during the period of remand.  While the defendant may suffer from some hardship due to his pre-existing injuries, this is generally not a valid mitigating factor.  And in serious case like this, this counts for little unless it is exceptional.  I do not consider the hardship that may be suffered by the defendant to be exceptional circumstances warranting further discount (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at para 73).  Regarding the credit for clear record, this is subsumed in the usual discount granted on a guilty plea.  It is well established that no further discount for a clear record should be given unless there is evidence of positive good character (see HKSAR v Wong King Wai [2008] 2 HKC 614 and HKSAR v Herry Jane Yusuph at para 77). 

16.  Apart from the defendant’s guilty plea, there is no other mitigating factors justifying further reduction of sentence.  Given the defendant’s guilty plea, the sentence is reduced to 54 months’ imprisonment.  Therefore, the defendant is sentenced to 54 months’ imprisonment for this offence.