HKSAR v. JAMIR MOHAMMAD

DCCC 39/2020

[2020] HKDC 386

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 39 OF 2020

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REASONS FOR SENTENCE

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

Facts

2.  About 4:40 p.m. on 16 September 2019 when the defendant was coming out of Room B, 8/F, No. 269 Castle Peak Road, Cheung Sha Wan, he was stopped by PC20675 who was conducting an anti-narcotics operation with other police officers.  PC20675 conducted a body search on the defendant, and found a re-sealable plastic bag containing a variety of dangerous drugs inside the right front pocket of the defendant’s pants. A mobile phone and cash HK$150.60 were also found on the defendant.

3.  The dangerous drugs seized from the defendant were subsequently analyzed by the Government Chemist who confirmed that these dangerous drugs consisted of the following:

(1) 0.76 grammes of cannabis in herbal form;

(2) 1.37 grammes of a solid containing 1.15 grammes of MDMA[1];

(3) 30 tablets containing 4.91 grammes of MDMA;

(4) 2.35 grammes of a solid containing 1.64 grammes of ketamine, and 0.05 gramme of fluorodeschloroketamine;

(5) 3.58 grammes of a solid containing 2.86 grammes of cocaine.

4.  The estimated street value of all these dangerous drugs was HK$6,835.

5.  In a video-recorded interview, the defendant stated under caution the following:

(1) The substances inside the plastic bag found on him by the police were dangerous drugs.

(2) A male friend gave him these dangerous drugs in the evening of 15 September 2019, and he would return them to this male friend the following day, i.e. 16 September 2019.

(3) He was not sure of the exact contents of the dangerous drugs since he did not examine what was inside the plastic bag.

(4) The male friend would consume the dangerous drugs himself.

(5) The male friend told him that he could consume some of the dangerous drugs if he wished, and he consumed some of them.

(6) Although he occasionally consumed cocaine, he had never trafficked in dangerous drugs.

(7) The male friend might be of Indian origin, of quite strong built as well as dark skin, and living in Sham Shui Po. He came across this male in Sham Shui Po and they became friends thereafter.

6.  The defendant was a Form 8 recognizance holder in Hong Kong at all material times.

Criminal record

7.  The defendant has a clear criminal record.

Personal and family background

8.  The defendant was born on 1 February 1990 in Bangladesh.  He is now 30 years old and single.  In Bangladesh, he received education up to primary level, and ran a small fruit shop.  He came to Hong Kong on the strength of his Bangladesh passport on 8 September 2015 to seek political asylum.  He now lives alone in Hong Kong and is unemployed.

Mitigation

9.  Counsel for the defendant submitted that this Court should adopt the “combined approach” to determine the proper starting point of the term of imprisonment to be imposed on the defendant.  Counsel argued that the proper starting point should be just over 5 years’ imprisonment.  He did not dispute that the starting point might be enhanced in light of the defendant’s immigration status according to HKSAR v Shah Syed Arif [2]. He cited HKSAR v Chow Chun Sang[3] to support his submissions that the starting point could be reduced because part of the dangerous drugs was to be consumed by the defendant.  He stressed that the defendant was entitled to the full one-third discount of his sentence for pleading guilty at the earliest opportunity.  The defendant had also through his counsel submitted a letter to express his full remorse.

Reasons for sentence

10.  Trafficking in dangerous drugs has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of dangerous drugs being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option will not be employed.

11.  In the present case, despite the defendant’s guilty plea and the mitigation advanced on his behalf, there is simply no justification for not imposing a prison sentence.  In fact, learned counsel for the defendant only asked for a term of imprisonment as lenient as possible.

12.  The defendant had trafficked in 4 types of dangerous drugs, namely, 0.76 grammes of cannabis in herbal form, 6.06 (i.e. 1.15 + 4.91) grammes of MDMA, 1.69 (i.e. 1.64 + 0.05) grammes of ketamine and fluorodeschloroketamine[4], as well as 2.86 grammes of cocaine.  The Court of Appeal has laid down sentencing tariff for each kind of drugs.

13.  In Attorney General v Pedro Nel Rojas[5], the Court of Appeal decided that the sentencing tariff for trafficking in heroin hydrochloride as laid down in The Queen v Lau Tak Ming[6] was applicable to trafficking in cocaine.  According to these authorities, the appropriate sentence for trafficking up to 10 grammes of cocaine is between 2 and 5 years. 

14.  In the present case, the defendant trafficked in 2.86 grammes of cocaine.  Purely as a matter of mathematic calculation, the appropriate starting point is 34.296 months.

15.  In Secretary for Justice v Hii Siew Cheng[7], the Court of Appeal decided that trafficking in MDMA and ketamine have the same sentencing tariff.  According to this tariff, for trafficking over 1 gramme to 10 grammes of MDMA and ketamine / fluorodeschloroketamine, the appropriate sentence is between 2 and 4 years.

16.  In the present case, the defendant trafficked in 6.06 grammes of MDMA, and 1.69 grammes of ketamine and fluorodeschloroketamine.  The total quantity was 7.75 grammes.  Applying the tariff in Hii Siew Cheng, and purely as a matter of mathematic calculation, the appropriate starting point is 37.20 months.

17.  I agree with counsel for the defendant that the quantity of herbal cannabis was so small that it can be discarded from consideration.

18.  If the “individual approach” as explained in HKSAR v Yip Wai Yin & Another[8] is adopted, the starting point of the prison term for all the drugs trafficked by the defendant will be 71.496 (i.e. 34.296 + 37.20) months.

19.  Using the absurdity test to cross-check the appropriate length of the prison term, assuming all the drugs were cocaine which was the more potent drug, and the total quantity was 10.61 (i.e. 2.86 + 7.75) grammes of cocaine, the proper starting point will be about 60.5 months, which is lower than the sentence under the individual approach. For this reason, the “combined approach” as explained in Yip Wai Yin should be preferred.

20.  Under the combined approach, since cocaine is the more potent drug than the others, it should be taken as the base for sentence and the starting point will then be adjusted upwards to take into account the other drugs. 

21.  As mentioned before, trafficking in 2.86 grammes of cocaine will attract a sentence of 34.296 months after trial, and the issue is how to adjust the sentence to take into account the fact that the defendant also trafficked in MDMA, ketamine and fluorodeschloroketamine in the total quantity of 7.75 grammes which by themselves will attract a sentence of 37.20 months after trial.

22.  Applying the tariff applicable to cocaine, trafficking in 3.66 grammes of cocaine will attract a sentence of 37.176 months after trial which is very close to the sentence to be imposed for trafficking in 7.75 grammes of MDMA, ketamine and fluorodeschloroketamine.

23.  Hence, applying the conversion test, the defendant can be treated as trafficking in 6.52 (i.e. 2.86 + 3.66) grammes of cocaine.  Applying the tariff applicable to cocaine, and purely as a mathematic calculation, the appropriate sentence after trial is 47.472 months.  Just to round up the figure, I adopt 47.5 months as the starting point of the term of imprisonment to be imposed on the defendant.

24.  Counsel for the defendant submitted that the starting point should be reduced on the ground that part of the drugs was to be used by the defendant for his own consumption.  The Court of Appeal stated in the case of Chow Chun Sang that the starting point might be reduced by 10 to 25% if part of the drugs was for the defendant’s own use.

25.  It is however also clear that only in cases where a “significant proportion” of the dangerous drugs was to be used by the defendant himself will result in a reduction of the sentence: HKSAR v Wong Suet Hau[9], HKSAR v Cheung Wai Man[10].

26.  Counsel for the defendant submitted that the defendant consumed around ½ gramme of cocaine per day, and he would have used 1 gramme of the cocaine that was in his possession. It is not disputed that the defendant was subject to a urine test on 19 September 2019 after his arrest, and he was tested positive for cocaine as well as for an opiate.  Other than cocaine, counsel for the defendant did not say that the defendant would consume the other types of drugs found on him.

27.  According to what the defendant had said under caution during his video-recorded interview, his friend gave him the dangerous drugs in the evening of 15 September 2019 and he would return them to his friend on 16 September 2019.  In other words, he stored the dangerous drugs temporarily for his friend.  The defendant claimed that his friend allowed him to consume part of the drugs if he wished, and that he did use some of them.  Counsel for the defendant further said that the defendant consumed ½ gramme of cocaine per day. 

28.  In my view, if the defendant had already consumed part of the cocaine given to him by his friend for storage, the drugs seized from him were the remaining quantity that he had to return to his friend and they were not for his own use.  It was accepted by the defendant that at the time when he was intercepted by the police, he was leaving his residence on his way to return the dangerous drugs to his friend.

29.  If it was argued that the defendant might still use part of the drugs after the drugs were returned to his friend, he would need to obtain the consent of his friend before he could use part of the drugs again, and the consent might not be forthcoming. In any event, it was said that the defendant would consume ½ gramme of cocaine a day.  It meant that even if the defendant would still use some of the cocaine found on him, the quantity would at most be about ½ gramme.  However, 2.86 grammes of cocaine were found on the defendant, and ½ gramme among this quantity could not be regarded as a “significant proportion”, and no reduction in sentence should be given according to the principle stated in Wong Suet Hau and Cheung Wai Man.  There was also no allegation that the defendant would use the other types of drugs found on him.  All in all, the starting point should not be reduced at all on the ground that part of the drugs was for the defendant’s own use.

30.  On the other hand, the defendant was a Form 8 recognizance holder seeking political asylum in Hong Kong at the time of the offence.  It is accepted that this is an aggravating factor that enhances the length of the sentence.  While the Court of Appeal in Shah Syed Arif stated that it was neither prudent nor possible to issue guidelines, and that the enhancement was best left to the discretion of the sentencing judge, the Court of Appeal also stated subsequently in HKSAR v Ali Saif[11] that it would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District Court or High Court.  Having considered the guidance from the Court of Appeal as well as the facts of this case, the starting point of the prison term to be imposed on the defendant is adjusted upwards by 6 months to 53.5 months’ imprisonment.

31.  There is no other aggravating factor.

32.  As far as mitigating factor is concerned, the only mitigation is the defendant’s timely plea.  He is entitled to the full one-third discount.

There is no other valid ground to reduce the sentence further.

33.  For the above reasons, the defendant is sentenced to imprisonment for 35 months and 18 days.