HKSAR v. AMIR UBAIDILAH

DCCC 557/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 557 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant, Amir Ubaidilah, was convicted after trial for the offence of trafficking in dangerous drugs. The charge concerned 10.28 grammes of a solid containing 5.88 grammes of cocaine and 0.87 gramme of a crystalline solid containing 0.83 gramme of methamphetamine hydrochloride.

2.  The defendant was arrested by the police on 26 March 2015 after a stop-and-search at Kam Sheung Road, Pak Heung.  The drugs in question were found on the defendant.  Apart from drugs, the police officers also found $11,000 cash in the rear right pocket of the defendant’s jeans.

3.  I convicted the defendant on the basis that he possessed the drugs in question for the purpose of unlawful trafficking.

4.  The defendant is a Form 8 asylum seeker.  He came to Hong Kong in 2013.  He was born in Indonesia in 1983.  He is now 32 years old.  Mr Pickavant told me in mitigation that the parents and the siblings of the defendant are all in Indonesia.  In March 2014, the defendant was convicted for the offence of breach of condition of stay, and he was given 4 weeks’ imprisonment suspended for 3 years.  As a result of the defendant’s conviction in the present case, he is in breach of the suspended sentence.

5.  Mr Pickavant in mitigation drew my attention to two matters.  Mr Pickavant submitted that part of the drugs in the present case were for the defendant’s own consumption.  He drew my attention to the case HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69. He drew my attention to the relevant extract in Cross & Cheung: Sentencing in Hong Kong at page 680:-

“Where it is apparent that a significant proportion of the drugs are for the accused’s own consumption, the court should adjust sentence to reflect the fact that not all of the drugs are for trafficking. However, save in the most exceptional case where the division is relatively quantifiable, it is not necessary for the court to specify the relative amount or proportions save in very broad terms. The court should also keep in mind that possession of dangerous drugs simpliciter carries a term of imprisonment as well as the requirement to enhance a sentence for simple possession to reflect, where appropriate, the latent risk factor in that some of the drugs might find their way into the hands of others. The application of these factors might offset the practical value of the mitigation particularly with drugs commonly used on social occasions, such as ‘Ecstasy’ and ‘Ice’. The gravity of the offence of trafficking is not mitigated in cases where the trafficker is trafficking in order to fund the purchase of narcotics intended to feed his own addiction.”

6.  The second matter that Mr Pickavant drew my attention to is the fact that in the trial, the defendant had admitted the entire prosecution case, thereby saving some court’s time. 

7.  As I said, this case concerned two types of drugs: “Ice” and cocaine.  In sentencing the defendant, I shall adopt the combined approach as opposed to the individual approach.  Of the two types of drugs in question, “Ice” is more potent in terms of potency than cocaine. Hence, I shall adopt the “Ice” in question as the basis for sentencing.

8.  Applying the tariffs as set down in the case Ching Kwok Hung, in my judgment, the “Ice” in question calls for a starting point of 3 years’ imprisonment.  In my judgment, the presence of 5.88 grammes of cocaine was significant in the present case.  The starting point should be enhanced to 39 months’ imprisonment.  As rightly pointed out by Mr Pickavant, the defendant had agreed the entire prosecution case at his trial and thereby saving some court’s time and public money.  I shall allow the defendant a reduction of 2 months’ imprisonment.

9.  As for the defendant’s claim that part of the drugs were intended for his self-consumption, I have rejected the defendant’s claim in his evidence that he possessed the drugs for his self-consumption.  I find that the defendant possessed the drugs for the purpose of unlawful trafficking, and it is one of my findings that the defendant could not afford the drugs in question.

10.  In fact, in Wong Suet Hau, the Court of Appeal emphasised that the gravity of the offence of trafficking is not mitigated in cases where the trafficker is trafficking in order to fund the purchase of narcotics intended to feed his own addiction.  In the present case, I am not persuaded that I should give the defendant any additional discount for his claim that part of the drugs would be for his own consumption.

11.  For the reasons given, I sentence the defendant to 37 months’ imprisonment.  I also activate the 4 weeks’ suspended sentence in full.  That shall run consecutively to the 37 months’ imprisonment that I impose on the defendant today.