HKSAR v. ALLAHA RAKHA RAHMAN

DCCC 168/2021

[2021] HKDC 970

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 168 OF 2021

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Reasons for Sentence

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

2.  Particulars of the offence are that on 5 October 2020, at the lift lobby, ground floor of Block B, Chungking Mansions, 36-44 Nathan Road, Tsim Sha Tsui, defendant unlawfully trafficked in dangerous drugs, namely, 84.07 grammes of cannabis in herbal form, 20.0 grammes of a solid containing 12.6 grammes of 3,4-methamphetamine and 0.88 gramme of a plant material containing psilocin.  Defendant was trafficking therefore in a total of three different types of dangerous drugs.  Psilocin is often referred to as psychedelic mushrooms or magic mushrooms.

3.  The facts are very straightforward.  The defendant was arrested as a result of a police patrol in the area of Chungking Mansions.  He was seen walking out of a lift.  He was seized.  Drugs were found in various plastic bags upon his person.  The defendant was arrested at the same day, taken to Tsim Sha Tsui Police Station.  Also in his possession were found two mobile phones, cash of Hong Kong dollars of over $47,000, cash of Indian rupee of $500 and of US$1. 

4.  At the material time, the defendant was living in Chungking Mansions.  Nothing suspicious was found in his home.  At the time of the offence, the defendant was a Form 8 recognizance holder and a non-refoulement claimant relying on financial assistance in the amount of $1,200 a month and food coupons from the International Social Service, Hong Kong branch.

5.  An estimate given by the police as to the value of the cannabis in herbal form was $20,261.  The defendant admits that he was trafficking in the drugs found upon him.

6.  The defendant’s antecedent statement shows that he was born in India.  The antecedent statement said he came to Hong Kong in 2015.  Apparently, that was a misunderstanding.  The defendant says today he came in 2014, admitted he is a Form 8 holder, completed secondary education in India, on assistance from ISS.

7.  Defendant has a number of previous convictions dating back to 2015, originally sentenced to 12 months’ imprisonment for trafficking in 2015, various convictions in 2016 and 18 for possession of a dangerous drug, and finally in 2018 a further conviction for trafficking in a dangerous drug for which he received a 20 months’ imprisonment consecutive to other sentence he was then serving for possession of a dangerous drug.

8.  In mitigation, the defendant has said that he was selling the cannabis at a lower rate than the figure given by the police expert for herbal cannabis.

9.  The approach to sentence is that of course trafficking in a dangerous drug is a serious offence.  It is an aggravating factor that a person traffics in a cocktail or a number of other drugs.  Where there is a cocktail of drugs in one charge of unlawful trafficking, there are supposed to be two approaches to sentencing in the situation, namely, the individual approach and the combined approach.  It is said often it is the combined approach that produces a more realistic sentence.  Individual approach has often produced sentences that far exceed the criminality of a defendant’s crime. 

10.  It is said to be sensible to take the combined approach here where most of the combined approach will be converted to the quantity of either the most serious or the most prevalent of the drugs.  Recent case of HKSAR v Islam S M Majharul, CACC 67/2019.  In that case, the Court of Appeal again reiterating the methodology in sentencing those trafficking for two or more different kinds of drugs, the methodology of the combined approach is to calculate the applicable sentence in the serious drug and then make an upward adjustment to take into account significant quantities of other drug. 

11.  In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal said there were three means of cross-checking whether the sentence was manifestly excessive after using of the combined or the individual approach.  The first test was the absurdity test, the second test was the conversion test, and the third test was the ratio test.  

12.  Turning to the guidelines in gist in respect of these drugs, the more serious drug is the methamphetamine of which there are 12.6 grammes.  The authority, the guideline is contained in the case of Secretary for Justice v Hii Siew Cheng which indicates that between a quantity of 10 to 50 grammes, the court should take a starting point of between 4 to 6 years’ imprisonment.  With a narcotic content of 12.6 grammes, the quantity obviously falls towards the bottom of that band.

13.  As far as herbal cannabis is concerned, we have 84.07 grammes of herbal cannabis.  There is no guideline for trafficking in this substance, but it is said to be a prison sentence less than that for trafficking in cannabis resin or cannabis oil, and normally a relatively limited prison sentence should be imposed for a quantity such as we have in today’s case.

14.  Finally, there is the question of trafficking in the plant material, 0.88 gramme of plant material containing psilocin, the magic mushroom.  There is no guideline in respect of that.

15.  As far as the most serious drug that I am dealing with here, that is the methamphetamine, I consider that in respect of that drug, a starting point of 51 months - that is 4 years and 3 months - should be adopted for the drug.  I have to consider the other quantities of drug found in this case.  That is the herbal cannabis and the psilocin. I consider an overall figure to represent those drugs to be added to this quantity would be one of 3 months’ imprisonment, leading to a total at this stage of 54 months’ imprisonment for the drugs found on the defendant’s person which he was trafficking in.  

16.  In this case, there are a number of aggravating factors.  Firstly, the defendant is a Form 8 holder.  Secondly, he has a number of previous convictions for the same offence in recent times.  And thirdly, there are a multiplicity of drugs to be trafficked in.  Having regard to the overall totality of sentencing, I will add a total of 9 months’ imprisonment to represent those three aggravating factors.  This gives me now a sentencing figure of 63 months’ imprisonment.  The defendant is entitled of course to a full one-third discount for that figure which would lead to a final sentence in this case of 42 months’ imprisonment.