HKSAR v. MEHMOOD RASHID

DCCC 145/2018

[2018] HKDC 1332

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 145 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a charge of trafficking in dangerous drugs.

Facts of the case

2.  It was a stop and search case.  On 17 November 2017, at about 11:17 pm, PW1, a police officer, was patrolling along Mody Road towards Chatham Road South.  PW1 saw the defendant was looking nervous and he put his left hand behind his back.  PW1 then proceeded to intercept the defendant but the defendant started running away.  Subsequently, the defendant was stopped.

3.  The police found on him, a tissue in his left back pocket of his trousers, inside the tissue, (i) seven plastic bags containing a total of 5.86 grammes of a crystal solid containing 5.85 grammes of methamphetamine hydrochloride and (ii) one plastic bag containing 24.7 grammes of cannabis in herbal form. 

4.  The defendant had HK$1,975.80 and two mobile phones on him.

5.  Under caution, the defendant said all the drugs were for self-consumption.

6.  The street value of the drugs was HK$7,577. 

7.  Negative result for amphetamine and cannabis was found from the urine sample collected from the defendant on 21 November 2017.

Mitigation and sentence

8.  The defendant now aged 31, came from India to Hong Kong in 2014 as a torture claimant.  He is single and studied up to primary 6 in India.  He was receiving food and cash subsidy of HK$200 monthly from International Social Service Hong Kong Branch.

9.  I have considered everything that been said by Mr Polson on your behalf, in particular your plea of guilty and you have a clear record.

10.  Having confirmed with Mr Polson, the defendant is not claiming a substantial amount or all of the drugs were for self-use.

11.  The defendant entered his plea of guilty after a trial date has been fixed, he is therefore not entitled to a one-third discount.  Mr Polson today has urged this court to adopt a 25 per cent discount rather than 20 per cent discount on his sentence. 

12.  Mr Polson has very helpfully prepared a chronology of events showing the defendant had wanted to change his plea but was unable to do so due to the fact that there was a change of counsel, which was beyond his control. 

13.  I accept he wanted to change his plea, and in fact he has changed his plea to guilty today, more importantly, prior to the trial date, I am prepared to give the defendant one-fourth discount on his sentence.

14.  He is a Form 8 holder who trafficked in dangerous drugs.  Mr Polson agreed that there should be an enhancement of sentence, at least no less than 6 months.  (HKSAR v Joof Saihou, CACC 252/2017)  Mr Polson has ventured to suggest between 6 to 12 months and given the fact that the amount of drugs involved should put the defendant into the lower end of the scale.

15.  For trafficking in ‘Ice’, up to 10 grammes, between 3 to 7 years - in the present case, 5.85 grammes - and for cannabis in herbal form, the tariff for trafficking in cannabis resin is up to 16 months under 2,000 grammes and reduction should be made to reflect the less serious nature of herbal cannabis.  By adopting the combined approach, I do not consider 24.7 grammes will affect the overall sentence.

16.  I adopt a starting point of 4 years and enhance it by another 8 months, making a total of 56 months, and I will reduce the sentence by one-fourth, by 25 per cent.  The defendant is therefore sentenced to 42 months’ imprisonment.