HKSAR v. MOHAMMED SHAMIUL HAQUE

HCMA 399/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 399 OF 2017

(ON APPEAL FROM ESCC 1203/2017)

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J U D G M E N T

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1.  The Appellant was one of the two defendants in this case. He pleaded guilty to one charge of Trafficking in a Dangerous Drug and was sentenced by the Principal Magistrate to 16 months’ imprisonment. He now appeals against the sentence.

2.  The facts which the Appellant admitted reveal that, on 21 April 2017, he and the other defendant approached a police officer who was posing as a customer and offered to sell him one packet of cocaine for $1,200.  When the officer agreed, he went to a nearby alley. When he returned, he passed a packet of cocaine to the other defendant who then passed it to the officer.  Both of them were arrested and the Appellant denied any involvement.  The dangerous drug which the officer received was 0.68 grammes of solid containing 0.09 grammes of cocaine.

3.  At the hearing before the Principal Magistrate, the Appellant was represented[1]. In mitigation, Counsel informed the Court that the Appellant is 30 years of age and is a Form 8 holder.  The court was also informed that the Appellant was involved just to help his friend and he was remorseful.

4.  The Principal Magistrate adopted 2 years as the starting point, gave the Appellant a 1/3 discount for his guilty plea and imposed an imprisonment term of 16 months.

5.  On appeal, the Appellant[2] submitted that the sentence is too heavy and put up the following reasons :

(1) this is the first time he has committed any offence; and

(2) his mother is in ill health and is suffering from a heart problem, her condition turned worse after knowing his situation.

6.  The Appellant had also mentioned something which appeared to point at an equivocal plea.  When the court clarified the matter with him, he repeatedly confirmed that he admitted having committed the offence and was not going to challenge the conviction.   He also confirmed that the court can limit its consideration to his appeal against sentence only.

7.  I will therefore confine my consideration only to the sentence imposed.

8.  It was held by the Court of Appeal in AG v Pedro Nel Rojas[3] that cocaine and heroin were to be equated for sentencing purposes and therefore the Lau Tak Ming tariff is applicable. 

9.  In R v Lau Tak Ming [4], the Court of Appeal said a sentence of 2 to 5 years’ imprisonment should be considered if the narcotic content trafficked in was less than 10 grammes.

10.  As the quantity of drug involved was very small, in suitable circumstances the sentencing court may see fit to exercise discretion not to follow the tariff strictly.  That said, the scope of discretion will be limited in light of the level of sentence appropriate for possession of similar quantity of the same type of drug.

11.  The Appellant did not have any prior criminal conviction record but he stayed in Hong Kong on recognizance.  The Court of Appeal held in HKSAR v Shah Syed Arif [5] that the sentencing court is entitled to take into account as an aggravating factor that a serious offence which has great impact on the community has been committed by an asylum seeker.  Trafficking in dangerous drug is clearly such an offence.

12.  The Court of Appeal mentioned in Lau Tak Ming that the place of ultimate sale is a matter the sentencing judge may properly take into account.  The transaction in this case took place at the Lan Kwan Fong area.  Selling and distribution of drug at such area may be regarded as an aggravating factor for the purpose of sentence.   The area is one where many people go for dining and entertainment and well known both locally and amongst tourists.  However, at the same time we cannot ignore the unpleasant fact that this sort of illegal activities occurred frequently in the area and people going there for perfectly legitimate purposes may be taken off the rails because of the trade or even social sharing.

13.  Even if the Appellant is a first time offender, it does not amount to a mitigating factor for this serious offence.  What the Appellant said in relation to the health of his mother is not of such a nature and degree that justifies exceptional exercise of clemency.

14.  In all the circumstances, the Appellant failed to persuade me that the Principal Magistrate was wrong to adopt 2 years as the starting point.

15.  The only mitigation available to the Appellant is his guilty plea and for this the Principal Magistrate has appropriately given him a 1/3 discount.

16.  The 16 months’ imprisonment imposed is neither wrong in principle nor manifestly excessive.  I therefore dismiss the appeal.