HKSAR v. RASUL GOLAM

CACC 174/2018

[2018] HKCA 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 174 OF 2018

(ON APPEAL FROM DCCC NO 952 OF 2017)

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J U D G M E N T

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1.  The applicant applies for leave to appeal the sentence of 5 years and 3 months’ imprisonment imposed on him by District Court Judge Casewell on 15 June 2018, following his conviction after trial of the offence of trafficking in dangerous drugs, consisting of a total of 15.74 grammes of a batch of cocaine and heroin hydrochloride.

2.  In the evening on 28 July 2017, the police conducted a search of a residence where the applicant was found with the drugs in question together with items and equipment for packaging and distribution of the drugs.  The street value of the drugs was $24,047.

3.  The applicant in a subsequent video recorded interview stated that he came from India to Hong Kong in 2014 and sought asylum.  He was a Form 8 recognizance holder.  He claimed he had no fixed place of abode and relied on welfare benefits.  He admitted he was a drug addict and would obtain drugs from Chungking Mansion.

4.  In the appeal papers filed by the applicant against sentence, he did not articulate any ground of appeal.  He initially complained about his conviction at today’s hearing but his notice for leave to appeal is against sentence only.  He confirmed that the notice was in his handwriting and that he only wanted to appeal his sentence.  When asked to explain his concerns about his sentence, he simply said he had nothing to say.

5.  The applicable guideline tariff is R v Lau Tak Ming [1990] 2 HKLR 370, and the quantity of 15.74 grammes falls within the band of 10 to 15 grammes which attracts a sentence between 5 to 8 years’ imprisonment.  The judge adopted a starting point of 5 years’ imprisonment, although on a strict arithmetic calculation it is 5 years and 5 months’ imprisonment.  The applicant received a generously low starting point in the circumstances.  The judge further enhanced the sentence by 3 months to reflect the aggravating factor in this case that the applicant had committed a serious offence of drug trafficking when he was a Form 8 recognizance holder.  Whilst the judge was correct to enhance the sentence for this aggravating factor, the applicant should consider himself fortunate it was not higher in light of the sentencing guidelines of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Ali Saif, CACC 309/2017, 14 June 2018, unreported.

6.  The applicant has no cause for complaint for the sentence that was imposed on him.  Indeed, he is very fortunate it was not higher.  Accordingly, this application is totally devoid of merit and leave to appeal against sentence is refused. 

7.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.