HKSAR v. ABDUL RAUF HARIS

DCCC 455/2018

[2019] HKDC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 455 OF 2018

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Reasons for Sentence

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1.  Defendant pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  At about 6 pm on 24 January 2018, near the junction of Yee Kuk Street and Kweilin Street, Sham Shui Po, Kowloon, Hong Kong, police officers spotted the defendant there talking on the phone while looking left and right.  The defendant took out an item from the front right pocket of his trousers and then placed it back into the pocket. Defendant was intercepted, by then he also used his right hand to hold tightly onto the pocket.  Police officers asked the defendant to take it out. Defendant then took out one packet containing a total of 68.91 grammes of cannabis resin in the form of 10 rods from the pocket (Charge 1).

3.  Defendant was arrested and upon search, defendant had 2 keys, one tenancy agreement in his name for Room F, 8th Floor, No 172 Yee Kuk Street, Sham Shui Po (the “Flat”), and also cash of 2,600 and 2 mobile phones on his person.

4.  Defendant was then brought back to the above flat.  The flat was opened by using the keys seized from the defendant.  House search was conducted.  A yellow plastic bag and white plastic bag were found inside a cabinet under the kitchen sink in the flat.  The yellow plastic bag contained 27 plastic bags and the white containing 10, each with a different quantity of cannabis resin.  Altogether, 13,719 grammes of cannabis resin was found.  While on top of the refrigerator in the flat, there were also found one packet containing a total of 68.99 grammes of cannabis resin in the form of 10 rods, 2 electronic scales with batteries and 9 rental receipts in defendant’s name.

5.  Upon caution, defendant admitted in a video recorded interview that:

i. The flat was rented in his name from June to November 2017;

ii. He knew the drugs in the flat was cannabis resin;

iii. He had no income and could not work in Hong Kong;

iv. He does not have a habit of taking dangerous drugs; and

v. The 2 mobile phones and cash seized belonged to him.

6.  For Charge 1, the estimated street value of cannabis resin seized was $5,400-odd.  For Charge 2, the estimated street value seized was about $1.089 million-odd.

7.  Defendant now admits possessing all of the above dangerous drugs seized for the purpose of unlawful trafficking, and defendant was a Form 8 recognizance holder.

8.  Defendant aged 24, clear record, a Form 8 holder coming from Pakistan.  Mr Beel submits that the defendant came to Hong Kong in 2015 and immediately took out the application for refugee status instead of hiding somewhere or working until he was found, and he had not been convicted any other offence until now.  Clearly, defendant was not the mastermind but only played a relatively minor role to store the drugs, and he would consume small portion of the cannabis found, as confirmed by the positive urine test result as submitted.

9.  Mr Beel further submits a case with similar quantity of HKSAR v Gurung Suraj CACC 225/2014, where the applicant imported about 15.2 kilogrammes of cannabis resin and was sentenced with 5 years’ imprisonment as starting point.  It is submitted that a lower starting point should be adopted in this case, particularly in the absence of international dimension and of lesser amount.  Defendant pleaded guilty and asks for a lenient sentence.

10.  Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal in AG v Tuen Shui Ming [1995] 2 HKC 798 had set out the guideline.  While for trafficking over 9 kilogrammes of cannabis resin, imprisonment of 4 years upwards should be imposed, while under 2,000 grammes, up to 16 months.

11.  In the present case, there were altogether more than 13.8 kilogrammes of cannabis resin worth more than $1 million were found.  The facts were serious.

12.  I assess that 4½ years’ imprisonment should be adopted.

13.  Enhancement of sentence should also be made of his status but, nonetheless, I also acknowledge that small portion of the drugs would be consumed by the defendant.

14.  So, after consideration, I still adopt 4½ years’ imprisonment as a starting point.  For Charge 1, involving 68.91 grammes of cannabis resin, starting point of 6 months should be made, that be reduced to 4 months’ imprisonment.  For Charge 2, 4½ years’ imprisonment should be adopted as a starting point and that be reduced to 3 years’ imprisonment upon guilty plea.

15.  Lastly, for totality, I consider it appropriate to make both charges to run concurrently.  So,

Charge 1: 4 months’ imprisonment;

Charge 2: 3 years’ imprisonment;

Both charges to run concurrently.

16.  So, altogether for both charges, 3 years’ imprisonment.