HKSAR v. HUSSAIN SHAFAAT

DCCC 596/2024

[2024] HKDC 1807

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 596 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant, Mr Hussain Shafaat, has pleaded guilty to two charges of trafficking in a dangerous drug, both offences occurring on 19 September 2023.

2.  The facts are very simple.  They show that the defendant was intercepted in the vicinity of a place called “Majestic House” in Nathan Road.  When he was searched, some drugs were found on him.  That is what is described as 12.93 grammes of cannabis in herbal form.  They were the substance of the 1^st charge.

3.  The defendant was then taken back to a room in Majestic House where he was residing in, and the drugs that form the 2^nd charge were found there, and they are 493.93 grammes of cannabis in herbal form.  A further liquid containing 0.43 grammes of tetrahydrocannabinol, which is a tetrahydro derivative of cannabinol, and a further 2.53 grammes of methamphetamine hydrochloride, colloquially known as “Ice”.

4.  The defendant has admitted all the facts.  I have convicted him of the offence.

5.  His antecedents show that he is currently only 38 years old, at this stage detained in custody, has been since his arrest in September of last year.  He is originally from Pakistan, and in Hong Kong has the status of being a Form 8 holder.  He has, however, been in Hong Kong since 2009, a lengthy period to be having that status.

6.  He has one previous conviction for possession of a dangerous drug in 2021, for which he was fined.  It bears little relation to this case, except that in mitigation it is said that he started to take the drug as a result of pain occurring from breaking both his legs.

7.  Well, in any event, whatever his reason for becoming a user of drugs, he has been found with a substantial quantity of herbal cannabis and a smaller quantity of methamphetamine hydrochloride.

8.  Taking the approach to sentence, the two charges themselves effectively form one transaction in this case, and it is best to approach sentence on the basis of an overall total figure disclosed by the separate charges.  This means the court is having to deal in this case with a combination or cocktail of drugs.  It is necessary to firstly look at the individual starting points for sentence in relation to the individual drugs, and then determine the approach to the totality of sentence, given the fact that there is a combination of drugs involved here.

9.  The methamphetamine hydrochloride, the quantity I am dealing with here is 2.53 grammes.  The guideline sentence for this drug is, for less than 10 grammes, would be a sentence of between 3 to 7 years’ imprisonment.  Clearly, this figure is at the lowest point of that guideline, being the initial phase at which a charge of trafficking would be, perhaps bought as opposed to a charge for possession of a dangerous drug.

10.  As far as the cannabis is concerned, that is a total quantity of 483.29 grammes of drug in the form of herbal cannabis and also the liquid cannabinol that we can see in the charge.  The possession of this particular form of drug is in fact covered by a guideline sentencing as well.  For an amount under 2,000 grammes, it calls for a sentence of less than 16 months, which could mean a starting point of round about 4 months’ imprisonment could be appropriate.

11.  Having isolated the potential starting points of the two individual drugs, one then must look at the correct approach when one is dealing with a cocktail of drugs.  Whereas the individual approach is simply to add the figures together, add up any other aggravating factors, and then deduct for any mitigating factors, another approach is what is described as a combined approach, which involves taking a starting point for the more serious of the drugs and then adding another part of the sentence to indicate that another drug is involved in the overall calculation.  You can see that approach being set out in cases such as HKSAR v Chung Wai Man [2019] 1 HKC and HKSAR v Chan Yuk Leong [2014] HKCU 889, described as the “combined approach”.

12.  The combined approach can be tested by a series of other tests set out in the case of HKSAR v Wan Lau Mei CACC 389/2013.  These are the absurdity test, the conversion test, and the ratio test.

13.  Defence quite helpfully set out those tests and the figures that would be appropriate if I applied those tests.  Nevertheless, as I say, given that we have a substantial quantity of herbal cannabis here, the tests do not give particularly helpful results in calculating the sentence.

14.  I shall simply approach it with the normal approach for the combined approach, bearing in mind also that a purely mathematical approach is not necessarily the correct approach in these sentences.  I was referred to the case of HKSAR v Herry Jane Yusuph, which says the mathematical approach is not necessarily the be all and end all of sentencing in these cases, given that this is a discretionary exercise and I must individually craft the sentence to reflect the actual criminality of this particular defendant and his circumstances.

15.  The other factor I must bear in mind is simply adding up aggravating factors can lead to an excessive sentence.  As far as the aggravating factors are concerned here, they would be that we are dealing with a cocktail of drugs and also that the defendant is a Form 8 holder, which is said to be an aggravating factor that can lead to a sentence in this court generally of not less than 6 months’ imprisonment to be added to any starting point for sentence.  We can see that in the case of HKSAR v Ali Saif CACC 309/2017.

16.  My approach will be as follows.  I will take an overall figure, and then I will put an individual figure for each charge the defendant has pleaded guilty to, but this is an overall figure I am calculating for this cocktail of drugs.

17.  Firstly, there is the methamphetamine hydrochloride.  The starting point for that should be 36 months’; 3 years’ imprisonment.

18.  There should be some addition for the existence of the herbal cannabis. I shall add simply 3 months’ imprisonment for that, leading to a figure now of 39 months’ imprisonment.

19.  The final aggravating factor would of course be the defendant’s Form 8 status.  I bear in mind when making this calculation that the defendant is a person who has been in Hong Kong for a long time, that the drugs themselves are predominantly herbal cannabis that I am dealing with here, so I think it may not be appropriate to take the full 6 months’ additional figure.  I will add a further 3 months to reflect that aggravating factor, and that gives me an overall total of 42 months’ imprisonment.

20.  The defendant is entitled to a full one-third discount, which would lead to an overall sentence of 28 months’ imprisonment.

21.  I will achieve that simply by ordering the sentences on the charges to run as follows:

(1)  Charge 1, a sentence of 3 months’ imprisonment;

(2)  Charge 2, a sentence of 28 months’ imprisonment;

Both sentences to be served concurrently, with a total of 28 months’ imprisonment.