HKSAR v. SHAHID ALI (also known as ALI)

DCCC 684/2022

[2023] HKDC 1689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 684 OF 2022

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to 3 offences:

a. 1^st charge: trafficking in dangerous drugs, namely 0.82g of cannabis in herbal form, 0.20g of a mixture containing 0.17g of heroin hydrochloride, 19.4g of a solid containing 16.2g of heroin hydrochloride and 0.38g of a crystalline solid containing 0.38g of methamphetamine hydrochloride (commonly known as ice);

b. 2^nd charge: possession of Part I poison namely 4 tablets containing sildenafil and 1 capsule containing sildenafil; and

c. 3^rd charge: willfully obstructing Police Constable 26422 in the due execution of his duty.

Facts

2.  The defendant agreed that on 20 January 2022 about 0211 hours, PC 26422 and SGT 7431 (“SGT”)  were conducting anti-crime patrol near the building at G/F, 124-142 Chung On Street, Tsuen Wan.  They saw the defendant leaving from the building and immediately retreated.  They walked into the staircase of the building and saw the defendant standing there with his right hand kept inside the front right pocket of his pants.

3.  Upon declaring police identity and demanding the defendant to take out his right hand, the defendant refused and said “Ah Sir, I have nothing.  Let me go.” SGT then grabbed hold of the defendant’s right hand and pulled it out.   The defendant was found to have held a brown cloth bag in his hand.

4.  When SGT was inspecting the bag, the defendant suddenly pushed the chest of PC 26422, and SGT immediately pressed the defendant’s upper body against the wall.  PC 26422 took out his baton and warned the defendant not to move.  The defendant ignored and kept struggling and pushed the chest of PC 26422 again and struggled with SGT.  Another warning was issued but the defendant ignored. PC 26422 then hit the defendant’s left thigh thrice with his baton but the defendant still did not stop struggling.  PC 26422 hit his left thigh thrice again but he kept struggling and bumped him away with his hands and upper body. He then fled away.

5.  The officers chased after the defendant.  SGT was able to grab hold of the defendant’s waist.  The defendant struggled and PC 26422 warned him not to move further.  As the defendant kept struggling, PC 26422 hit the defendant’s right thigh with his baton thrice.  The defendant managed to get rid of SGT and fled.  Later, SGT successfully intercepted the defendant by grabbing hold of his waist.

6.  Although PC 26422 tried to subdue the defendant with his baton, the defendant got rid of SGT again and ran into a rear lane.  SGT attempted to subdue him by grabbing hold of his waist but he kept struggling.  In view of the situation, PC 26422 sprayed OC foam on the defendant’s face for 3 seconds and the defendant was finally subdued.

7.  Around 0245 hours, the officers found from the defendant’s cloth bag (i)  the dangerous drugs and the Part I poison as described in the respective charges; and (ii)  a plastic bag containing 3.26g of a solid in which no controlled substance was detected. The estimated street value of the dangerous drugs seized was HK$21,696.

8.  The defendant was arrested for the offence of possession of dangerous drugs and assaulting a police officer.  He remained silent under caution.

9.  PC 26422 was medically examined.  He suffered (a)  tenderness and redness at his right knee; (b)  tenderness and a roundish abrasion of 2 cm at his right elbow; (c)  a linear abrasion of less than 1 cm at his right thumb, index finger and middle finger; and (d)  a linear abrasion of less than 1 cm at his left palm. 

10.  At the material times, the defendant unlawfully trafficked in the dangerous drugs as particularized in the 1^st charge; had in his possession the Part 1 poison as particularized in the 2^nd charge; and willfully obstructed PC 26422.

Antecedent and criminal records

11.  The defendant has two previous criminal convictions: possession of dangerous drug and possession of equipment fit for smoking dangerous drug.  He was sentenced to Drug Addiction Treatment Centre for both offences on 18 August 2014.

12.  The content of the antecedent statement in respect of his age, education and occupation is the same as shown in the written mitigation.

Mitigation

13.  The defendant is represented by Mr Maurice Tracy.

14.  Mr Tracy submits that the defendant, now aged 34, was born in March 1989 in Hong Kong.  He was educated up to Form 7.  He speaks Cantonese and speaks, reads and writes English reasonably well.  He married in February 2021 but has been separated from his wife in late 2021.  He has a relationship with an Indonesian woman, a Ms Masroah, by whom he has a son, born 8 days prior to his arrest.  At the time of his arrest, he was a salesman earning about $20,000 per month.  He resided with his parents, Ms Masroah and their son in Kwai Chung.

15.  In respect of the background leading to the commission of the present offences, Mr Tracy says that on 20 January 2022, the defendant met two friends who also consumed drugs and with whom an agreement that the defendant would go on their behalf to buy heroin.  He also would buy a 1/3 of the total envisaged to be brought for his own use.  His two friends were also in Tsuen Wan and he therefore agreed that he would bring the consignment of drugs to them, each would have 1/3 portion.  The friends gave him money for their shares in excess of $9,000.  He paid his own 1/3 share.  Because of the relatively large amount purchased the price was a lot lower than when an addict buys small packets for immediate consumption from a street retailer. 

16.  Later in the evening of 20^th January, he and Ms Masroah decided to go to a park nearby for some fresh air.  The defendant, who never wished to take or leave drugs in the somewhat crowded flat, took the opportunity to consume 0.2g of ice and 0.2g of heroin.  After he had consumed the latter all he had left from his heroin was 0.2g of mixture containing 0.17g of heroin, and 0.38g of ice.  He did not use any of the herbal cannabis.

17.  The defendant then left Ms Masroah temporarily in the park and proceeded to the address as shown in the 1^st charge.  He contacted the supplier and acquired the drugs for himself and for his two friends but was then intercepted by the police.  His over reaction was probably conditioned by the drugs he had consumed.  He is deeply remorseful about his wild aggressive conduct towards the officers.  The injured officer has fully and speedily recovered.

18.  Mr Tracy considers that the defendant is lower down the scale than a courier in commercial drug trafficking; and is not likely at all to distribute the drugs to a substantial number of consumers; and that the 3 small packets, and his 1/3 of the heroin purchased, were for his own consumption; and not even for social trafficking.

19.  Mr Tracy relies on a number of authorities (see: Annex 1)  and asks this court to reduce the sentence for the reason that 1/3 of the heroin seized was for the defendant’s own consumption.  He contends that the small amount of heroin (0.17g), and ice (0.38g)  suggests that the defendant was not trafficking in these drugs.  Besides, there is no evidence that any drug trafficking equipment e.g. scales and empty plastic bags were found.  The defendant was arrested for possession of dangerous drugs.  The wrapping of the drugs (see: photos)  shows that the drugs are not ready for re-sale.

20.  Mr Lau, the prosecuting counsel, submits that the police conducted a house search and no paraphernalia was found.

21.  Mr Tracy asks this Court to refer to the factors mentioned in para 33, at page 79 of HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 and come to conclude that the defendant would consume a significant proportion of the drugs seized.  If the court is not with him, then he will ask the court to exercise its discretion to give a discount on sentence (see: paras 58, 70 of HKSAR v Kong Tak Lung [2018] 5 HKLRD 635).

The defendant’s claim that 1/3 of the heroin was for self consumption

22.  Having considered the facts and the mitigation put forward, I indicate to Mr Tracy that the court is not prepared to accept that the defendant would consume 1/3 of the seized heroin for reasons that:

a. the defendant admitted the facts that he trafficked in all the drugs in charge 1;

b. The heroin was estimated to have a street value of $21,344[1]. The defendant, assuming that he would share 1/3 of the heroin, had to pay around $7,000 for his share which is slightly more than 1/3 of his monthly income ($20,000). I do not believe that he would have the money to buy any significant amount of the heroin for his own consumption bearing in mind he has a family and a newborn baby to support financially;

c. it is rather odd for the defendant to go out with Miss Masroah for a walk and to leave her alone for a while; he then went to buy drugs for himself and for his friends; after this, he intended to reunite with Miss Masroah and walk back home; this would pose danger to Miss Masroah being suspected of jointly in possession of such a large amount of drugs if both of them, during the home return journey, were stopped by the police;

d. if he was to go out for a walk and to buy drugs as claimed, there was no need for him to bring with him the other drugs and the Part 1 poison; he was found to have 3 different kinds of drugs, 4 tablets and 1 capsule of sildenafil and a plastic bag containing 3.26g of a solid (see: para 7 above);

e. apart from his past criminal record of possession of dangerous drug which dated back to 7 ½ years ago, there is no other evidence to show that he is a habitual user of drugs.

23.  I consider what Mr Tracy has said on behalf of the defendant that he would consume 1/3 of the heroin is a bare assertion unsupported by confirmatory evidence.  I consider that a Newton hearing is required, but Mr Tracy does not pursue for one.

24.  As such, there is no evidence before me that the defendant would consume a significant proportion of the seized heroin.  He is therefore not entitled to have sentence reduction of 10% to 25% as recommended (see: HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572).

25.  Even if it might be that the defendant would have a small amount of the heroin for himself, no doubt, possession of a dangerous drug itself carries with it a term of imprisonment and there is also the latent risk factor. Therefore, in this case, I do not consider this self-consumption claim would meaningfully or materially affect the sentence and I do not see any basis for reduction because of this claim (see: HKSAR v Liu Ming Sze [2017] 1 HKLRD 297; Wong Suet-hau).

Reasons for Sentence

26.  In sentencing, I have considered the facts of the case and the mitigation thoroughly advanced by Mr Tracy. 

27.  Regarding the starting point to be adopted in the 1^st charge, Mr Tracy has helpfully prepared a schedule annexed to his written mitigation in which he calculates the notional starting point for charge 1 by reference to the use of the 3 tests mentioned in HKSAR v Chan Yuk Leong CACC 318 of 2013. 

1^st charge

28.  In R v Tuen Shiu Ming [1995] 2 HKCLR 129, the sentence for trafficking under 2,000g of cannabis resin is up to 16 months.

29.  In the present case, the very small quantity of herbal cannabis, only 0.82g, would have had negligible effect on the overall sentence on the defendant because of the nature and quantities of the other two drugs. 

30.  In R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is from 10g to 50g is between 5 and 8 years’ imprisonment.  The starting point for trafficking in 16.37g of heroin would be 5 years and 5 months’ imprisonment (65 months).

31.  In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the sentencing guidelines for trafficking in ice. The starting point after trial where the quantity of narcotic is up to 10g is between 3 and 7 years. The starting point for trafficking in 0.38g of ice would be around 3 years and 1 months’ imprisonment (37 months).

32.  If the “individual approach” is adopted for sentencing i.e. based on quantity alone, by adding the two starting points aforementioned (paras 30 & 31), the overall starting point would be around 8 years and 6 months’ imprisonment (102 months).

33.  In HKSAR v Islam Majharul [2020] 3 HKLRD 146, the Court of appeal revisited the individual approach and the combined approach used in sentencing a defendant who was found guilty of trafficking in multiple drugs.  In giving the judgment of the Court, Zervos JA said :-

“24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs.”

34.  The Court of Appeal also set out the methodology to be used when adopting the combined approach.  First, the sentencing court should determine which drug should be used as the base drug.  On this, Zerovs JA went on to say :-

“24. …In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.”

35.  As stated in para 32 above, the overall starting point for the drugs concerned is considered to be excessively high.  I consider that the combined approach should be adopted in determining the starting point for the 1^st charge.

36.  Mr Tracy considers that ice has the highest potency and should be used as the base drug.  On this, I disagree.  Both heroin and ice are hard drugs. The amount of ice involved in charge 1 is however very small.  It represents 2% of the total amount of drugs seized (16.37g heroin + 0.38g ice + 0.82g herbal cannabis = 17.57g)  whereas the amount of heroin represents 93%.  I consider it appropriate to use heroin as the base drug.  Mr Tracy has no objection to it.

37.  According to the sentencing guidelines for 16.37g of heroin, the starting point is 65 months.  Mr Tracy submits that in light of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and on the facts of the case, the defendant is lower down the scale than a courier in commercial drug trafficking and is not likely at all to distribute drugs to a substantial number of consumers.  

38.  In Herry Jane Yusuph, the Court of Appeal said, at para 60:

“Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically.”

39.  On the facts of the present case, I find the defendant to be a mere courier and I adopt a starting point of sentence of 65 months.

40.  I now have to determine by how much this starting point should be increased to allow for the quantity of the other drug namely ice.  As said in para 27 of Islam SM Majharul, this is ultimately an exercise of sentencing discretion and should be done by considering the quantity of ice, the sentencing guidelines for ice and by reference to the starting point adopted for the base drug (heroin); conducing an overall comparison of the sentencing guidelines of the two drugs; and examining the results of the 3 test.  

41.  The Court of Appeal in Chan Yuk Leong CACC 318 applied the 3 tests to cross-check the starting point in a charge involving multiple drugs.  Both Mr Lau and Mr Tracy assist the court and do the calculations using heroin as the base drug.

(The absurdity test)

42.  The amount of herbal cannabis is very small and it can be excluded from the calculation.

43.  Applying the absurdity test, if all the drugs (16.37g + 0.38g = 16.57g)  were heroin the starting point based on quantity alone would be almost 66 months’ imprisonment; if all the drugs were ice the starting point based on quantity alone would be around 89 months’ imprisonment.

(The conversion test)

44.  There were 16.37g of heroin seized.  0.38g of ice is similar to that which would be imposed for trafficking in 3.83g of heroin (3 years and 1 month).

45.  Adding the converted quantity (3.83g)  to the quantity of heroin (16.37g), it results in 20.2g of heroin.  The conversion test based on the heroin sentencing guidelines is 5 years and 9.2 months (69 months).

(The ratio test)

46.  Here, heroin accounted for 0.93 in weight of the total quantity seized (16.37/17.57), and 0.2 for the ice. 

Drugs	Sentence (assuming 17.57g of single drug)	Ratio	Calculated Sentence
Cannabis (0.82g)	Fine, neglectable	4.67%	/
Heroin (16.37g)	5 years 7 months	93.17%	≈ 5 years 2 months
Ice (0.38g)	7 years 6 months	2.16%	≈ 2 months
Total			5 years 4 months (≈ 64 months)

47.  The sentence is 5 years 4 months (64 months).

Starting point for charge 1

48.  Taking all the aforesaid matters into account to calculate a reasonable and realistic increase to the starting point, I consider it appropriate to increase the starting point of 65 months by 2 months to 67 months’ imprisonment.

49.  It has been said that one aggravating feature is the ability of the trafficker to cater to a wider market[2]. Given that the defendant had trafficked in 3 types of drugs, I will enhance the starting point by 2 months.

50.  The starting point for charge 1 is 69 months.

2^nd Charge

51.  The maximum sentence for charge 2 is 2 years’ imprisonment.

52.  Mr Tracy refers this court to HKSAR v Ko Wai Shing [2021] 5 HKLRD 724 in which the appellant was charged with 3 drug related offences and an offence of possession of Part 1 poison namely 20 tablets containing sildenafil.  The appellant pleaded guilty to possession of Part 1 poison for which he was sentenced to 4 months’ imprisonment.

53.  There are cases which suggest that an immediate custodial sentence is called for[3]. Having considered all the circumstances of the case, I adopt a starting point of 9 weeks’ imprisonment. 

3^rd Charge

54.  The maximum sentence for charge 3 is 2 years’ imprisonment.

55.  Mr Tracy draws the court’s attention to HKSAR v Lo Pui-yiu [2021] 4 HKLRD 880.

56.  However, I consider the facts of the present case are more serious than that of Lo Pui-yiu.  As Mr Tracy rightly describes the behavior of the defendant, “…all the movements in a violent and quite protracted struggle…”. 

57.  In HKSAR v Tam Lap Fai [2005] 2 HKLRD 439, the Court of Final Appeal at para 24 said :-

“It is important to look at all the circumstances of each case, including what the person has done and how it is done, what the officer is doing, and the effect of what the person has done on what the officer is doing.”

58.  The defendant was spotted at about 0211 hours, and he was searched at about 0245 hours.  Mr Tracy disagrees that all the movements including the struggles lasted for almost 30 minutes.  I am not sure how long the wilful obstruction lasted but Mr Tracy agrees that it lasted for some time.  During that period of time, the defendant wilfully obstructed PC 26422 by doing a series of violent and aggressive acts: pushing the chest of PC 26422 on two occasions; ignoring police warnings; struggling while he was being grabbed hold of; fleeing away so that the police had to chase after him etc.  It is fortunate that PC 26422 was not seriously injured.

59.  In HKSAR v Choi Ping Chiu CACC 312 of 2010, the appellant was convicted of assaulting a police officer in the execution of his duty.  The Court of Appeal, at para 28, said :-

“Police officers, in the due execution of their duties, are symbol of law and order, and must be respected and protected from abuse. If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised.”

60.  These principles are apposite to the present situation.  I take into account all the facts of the case including the acts of the defendant and the authorities SJ v Chan Hing Tung CAAR 1/2022, I adopt a starting point of 3 months’ imprisonment.

Sentence reduction

61.  The defendant has entered a timely plea and is therefore entitled to a one-third discount of sentence from the starting point. 

62.  After discount, the sentences for charges 1, 2 & 3 are respectively 46 months, 6 weeks and 2 months.

63.  As explained above, I reject the defendant’s claim that he would consume 1/3 of the seized heroin.  And I will not exercise my discretion to reduce the sentence assuming that the defendant would consume only a small amount of the heroin. 

64.  The defendant himself and his family members ask this court to give him a lenient sentence for he has turned over a new leaf. I must emphasis that trafficking in dangerous drugs is an extremely serious crime.  As said in Herry Jane Yusuph,

“44. Given the appalling consequences which proliferation of dangerous, particularly addictive, drugs has on families, communities, the workplace, indeed, on the whole fabric and functioning of society, the reasons for a defendant’s involvement in the crime and his personal circumstances are of far less importance than society’s duty to protect its citizens and the courts’ paramount function of “denunciation, deterrence and punishment” of those who would seek to traffick in dangerous drugs. As the Court said in Lau Tak Ming, mitigating factors in cases of this nature will have less weight than they might otherwise have for less serious offences…”

65.  There is no other valid mitigating factor which justifies a further reduction of sentence. 

Totality

66.  All these offences are separate and distinct. The sentences imposed on each charge should be served consecutively.  However, I have to consider the totality principle.

67.  In my view, it was one thing to traffic in dangerous drugs, but quite another to wilfully obstruct the police officer in the due execution of his duties. 

68.  As such, I order that the sentence of charges 1 and 2 be served concurrently with each other, making a total of 46 months’ imprisonment.

69.  The sentence of charge 3 is to serve wholly consecutive to the sentence of charges 1 and 2.

70.  The defendant is sentenced to 48 months’ imprisonment.

Annex 1

1.  HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69

2.  HKSAR v Chong Chee Meng [2008] 6 HKC 407

3.  HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121

4.  HKSAR v Chan Yuk Leong CACC 318/2013

5.  HKSAR v Wong Sze Tung [2015] 4 HKLRD 836

6.  HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572

7.  HKSAR v Chan Suet Ping [2018] 1 HKLRD 305

8.  HKSAR v Kong Tat Lung [2017] 6 HKC 448

9.  HKSAR v Choi Chun Wo [2018] 5 HKLRD 717

10.  HKSAR v Cheung Wai Man [2019] 1 HKLRD 817

11.  HKSAR v Ko Wai Shing [2021] 5 HKLRD 724

12.  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290

13.  HKSAR v Lo Pui-yiu [2021] 4 HKLRD 880