HKSAR v. S M SHOWAN

DCCC 244/2018

[2018] HKDC 912

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drug involved is cocaine.

Charge 1

2.  On 17 November 2017, while Mr Johnson, police Chief Inspector, was conducting anti-crime operation, he was approached by the defendant who offered to sell him dangerous drug.  The defendant gave his business card with contact number to Mr Johnson.

3.  On 18 November 2017, Mr Johnson contacted the defendant via what’s app and the defendant offered him dangerous drug with quotation on price and photographs depicting the drug.

4.  On 3 December 2017, Mr Johnson met the defendant.  The defendant handed him a piece of tissue containing 2 transparent plastic bags containing a total of 0.97 gramme of cocaine.  Mr Johnson handed HK$2,000 marked money to the defendant. 

Charge 2

5.  On 5 December 2017, Mr Johnson passed the defendant’s business card to another police Superintendent Mr Bennett to continue with the decoy operation.  Mr Bennett sent a what’s app message to the defendant requesting for a meeting later that day.  Later that day, Mr Bennett met the defendant.  The defendant led Mr Bennett to the 4^th floor of Mirador Mansions at Nathan Road.  He told Mr Bennett to wait and he walked away and met a male for about 10 seconds.  Then, the defendant returned and gave Mr Bennett a tissue paper containing a transparent plastic bag containing 0.50 gramme of cocaine.  Mr Bennett gave the defendant HK$1,500 marked money and the defendant gave his business card to Mr Bennett.

Charge 3

6.  On 10 December 2017, Mr Bennett requested the defendant to meet him at Sheraton Hotel in Tsim Sha Tsui.  Later that day, Mr Bennett met the defendant at the hotel lobby of Sheraton Hotel.  The defendant told Mr Bennett to follow him to the lift lobby where he gave Mr Bennett a transparent plastic bag containing 0.48 gramme of cocaine.  Mr Bennett gave the defendant HK$1,500 marked money.  The defendant then left.

7.  At this juncture, the defendant was intercepted by police officers.  The defendant was arrested and cautioned.  Under caution, the defendant did not give any response.

8.  Upon search, 2 mobile phones, some of the marked money given to the defendant on 3, 5 and 10 December 2017 and cash of HK$11,074.10 were found on the defendant.

9.  In subsequent video-recorded interview, the defendant stated under caution that he was a drug addict and he had taken drugs.

10.  On 12 December 2017, Mr Johnson positively identified the defendant in an identification parade.

Mitigation

11.  The defendant is aged 43, single with a daughter from his ex-girlfriend.  He has no criminal conviction in Hong Kong prior to the present case.  He came to Hong Kong in 2014 and is a Form 8 holder.

12.  In mitigation, it was submitted that the defendant came from a decent family in Bangladesh and was a well-educated and intelligent person.  It was submitted that the trafficking activities were isolated incidents.   The court was invited not to enhance the sentence for the fact that the defendant is a Form 8 holder as the quantity of drug involved was small.  The court was urged to take into consideration the totality principle and impose a lenient sentence on the defendant. 

Sentence

13.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see R v Lau Tak Ming[1990] 2 HKLR 370).  For trafficking up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years.  For each of the three charges, actual trafficking was involved and the amount of cocaine involved was less than 1 gramme.  I consider the appropriate starting point for each charge to be 2 years (see AG v To Ka Yin, CAAR 3/1996). 

14.  There is a line of authority to the effect that if non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence. Trafficking in dangerous drug is considered as such serious crime justifying enhancement of the sentence.

15.  For the aggravating feature that the defendant was at the time of the commission of the offence a Form 8 recognizance holder and a non-refoulement claimant, I consider the starting point for each charge should be enhanced by 3 months to 2 years and 3 months.  Since the defendant pleaded guilty to the charges, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence for each charge is reduced to 18 months.  Apart from that, I do not see other mitigating factor justifying further reduction of sentence.

16.  Given the three offences were committed on three different days at different locations, in theory their sentences should run consecutive to each other.  Taking into consideration the totality principle, I am satisfied that a total sentence of 22 months will be sufficient to reflect the criminality of the defendant.  In the circumstances, I order 2 months of the sentence for each of charges 2-3 to run consecutive to the sentence for charge 1, making a total sentence of 22 months’ imprisonment.  I hereby sentence the defendant to 22 months’ imprisonment.