HKSAR v. ELIAS MAJD

DCCC 191/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 191 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of possession of 0.76 gramme of a crystalline solid containing 0.74 gramme of methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); and one charge of possession of seven counterfeit credit cards, contrary to section 75(2) of the Crimes Ordinance, Chapter 200 (charge 3).

2.  In summary at about 23:25 hours on the 23 October last year the defendant was seen acting suspiciously inside an amusement game centre in Hung Hom.  PC54074 conducted a search of the defendant and found from his left front trouser pocket a bag containing the ice and from his right front pocket the seven counterfeit credit cards.

3.  In passing sentence I have carefully considered everything said by Mr Bullet on behalf of the defendant.   I take into account the defendant has a clear criminal record in both Hong Kong and Canada.   Although not a Hong Kong resident the defendant has visited Hong Kong a number of times in the past five years.  Mr Bullett informs the court the defendant has in fact spent most of the past five years in Hong Kong as a gateway to China where he carried out business.  The clear record therefore carries more weight than a visitor who has just arrived in Hong Kong.  This will be taken into account in assessing the proper starting points.  

Possession of ice (charge 1)

4.  The defendant when being brought up in Israel was required to attend military service which involved active duty.  This subsequently led to psychiatric treatment for bouts of depression and the defendant resorting to recreational use of ice.  Having now spent eight months in custody the defendant says he has resolved to give up abusing drugs. 

5.  As correctly pointed out by Mr Bullett the Court of Appeal in HKSAR v Mok Cho Tik [2001] 1 HKC 261 said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  

6.  Had this charge stood alone the defendant would have appeared in the magistracy.  Taking into account the relatively small quantity of ice, Mr Bullett accepting the quantity is perhaps a little more than a single dose, I am satisfied a starting point of 9 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months imprisonment (see for example HKSAR v Wan Choi Fai HCMA 250/1998).

Possession of false instruments (charge 3)

7.  The defendant says he was approached by a friend of a friend called “David” who asked him to deal in parallel goods, namely iPhones.   After a few days and having been assured this dealing was not illegal the defendant agreed to buy the iPhones and take them to the Mainland.  When asking for the money to buy the iPhones the defendant was told to buy the iPhones with the counterfeit credit cards.  The defendant took possession of the cards but never used them and was intending to return them to “David” the night he was arrested wanting nothing more to do with the counterfeit cards.

8.  I have very grave reservations about how the defendant came into possession of the counterfeit credit cards and that he was about to return them when he was arrested by the police.  The defendant having only been charged with possession and not the more serious charge of possession with intent to use the cards, I am satisfied that the circumstances the defendant came into possession of the cards is not material to sentence.   

9.  Equally whether or not the defendant was to return the cards does not materially affect sentence.  The defendant is to be sentenced on knowingly possessing the counterfeit credit cards which possession has an inherent risk they may be used by someone in the future.  If anything returning the cards to the person who gave them to him, who on the defendant’s account was clearly acting dishonestly, is if anything more serious as this ensures the cards remain in circulation and therefore the likelihood of future use is higher.

10.  There are no guidelines for offences contrary to section 75(2) of the Crimes Ordinance.  In HKSAR v Ata Asaf CACC 445/2012 the Court of Appeal said a starting point of 18 months imprisonment was appropriate in the circumstances of the case for possession of four counterfeit credit cards.  Mr Bullett very properly draws to my attention a number of distinguishing features.  Firstly the defendant has a clear record, secondly there is no international element and thirdly there is no evidence any of the cards bore the particulars of genuine card holders.

11.  The defendant however was in possession of seven counterfeit credit cards and there was, on his own account, a very real risk the cards might be used by others illegally. Taking into account all the circumstances I am satisfied the proper starting point after trial is 1 year and 9 months imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 2 months imprisonment.

Totality

12.  The two charges are separate and distinct for which consecutive sentences are appropriate.  I am satisfied wholly consecutive sentences are appropriate making a total sentence of 1 year and 8 months imprisonment, which I am satisfied properly reflects the criminality of the defendant on both charges. 

Sentence

13.  The defendant is convicted and sentenced as follows:

CHARGE 1 – 6 MONTHS IMPRISONMENT;

CHARGE 3 – 1 YEAR AND 2 MONTHS IMPRISONMENT CONSECUTIVE TO CHARGE 1.

TOTAL SENTENCE TO BE SERVED IS 1 YEAR AND 8 MONTHS IMPRISONMENT.