HKSAR v. RASHID QADEER

DCCC 967/2023

[2024] HKDC 937

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

Facts

2.  On 25 October 2022 at around 1757 hours, the defendant, who was a Form 8 holder, was seen holding a white plastic bag in his left hand and having a strong smell of cannabis.  Police officer approached the defendant and revealed his identity to the defendant, who immediately threw the plastic bag into a bush nearby.  The defendant was thus intercepted.  He tried to flee but was subdued.

3.  The plastic bag was seized by the police and the following were found inside the bag:

(a)  4 packets containing 10 plastic bags containing a total net weight of 35.49 grammes of cannabis in herbal form and 2 plastic bags containing a total net weight of 1.22 grammes of methamphetamine hydrochloride; and

(b)  1 packet containing a total net weight of 17.64 grammes of cannabis resin and 4 plastic bags containing a total net weight of 12.87 grammes of cannabis resin.

4.  Government chemist confirmed the narcotic content of the drugs seized.  The estimated street value of the drugs seized was around HK$9,027.5.

Criminal Record

5.  The defendant has 6 previous records involving convictions of 8 charges, 7 of which relating to dangerous drugs and there are 2 similar convictions.

Mitigation

6.  The defendant is aged 46.  He was born in Pakistan and was educated up to primary school level.  He came to Hong Kong in year 2007 and is an asylum seeker.  He was married to an Indonesian lady and has a son. They are both living in Indonesia.  The defendant was financially supported by ISS with monthly assistance of HK$3,200.  It was said that the defendant was himself taking ICE and cannabis for some time.

7.  Defence counsel submitted that the only valid mitigating factor is the defendant’s early guilty plea, for which he is entitled to a sentencing discount. Defence counsel asked the court to deal with the defendant leniently.

Discussion

8.  Trafficking in dangerous drugs is a very serious offence and a person on conviction upon indictment of this offence is liable to life imprisonment and to a fine of HK$5 million.

9.  Following the tariff in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking 1.22 grammes of ‘Ice’ would attract a sentencing starting point of around 41.86 months’ imprisonment. 

10.  The average concentration of tetrahydrocannabinol (THC)  of cannabis in herbal form is only about one-quarter of that in cannabis resin.  For sentencing purpose, the 35.49 grammes of cannabis in herbal form will be treated as 8.87 grammes of cannabis resin and together with the 30.51 grammes of cannabis resin, total 39.38 grammes of cannabis resin. According to Attorney General v Tuen Shui Ming & Another [1995] 2 HKCLR 129, trafficking under 2,000 grammes of cannabis resin will attract a sentencing starting point of up to 16 months’ imprisonment.  This court considers that the sentencing starting point for trafficking 39.38 grammes of cannabis resin should attract a sentencing starting point of around 2 months’ imprisonment.

11.  In view of the relatively small quantity of cannabis, the court considers that the sentencing starting point for all the drugs seized in the whole case would be 44 months’ imprisonment. 

12.  The present offence was committed on 25 October 2022.  The court is not going to apply the revised sentencing guideline in the case of Nguyen Thang Loi and Another [2023] 1 HKLRD 1329.

13.  The sentencing starting point is further enhanced by reason that more than one type of drugs is involved which would result in the increased total culpability of the defendant.  But by reason of the nature and the quantity of this additional cannabis resin, the court is going to slightly enhance the sentencing starting point by 1 month.

14.  The defendant is a Form 8 recognizance holder.  It has been said in numerous cases that the defendant has therefore abused the hospitality extended to him by authorities and people of Hong Kong whilst he seeks asylum here by committing this serious offence which affect Hong Kong’s reputation for order and security of which he seeks to avail himself.  This is another aggravating feature in sentencing[1], for which the court will enhance the sentencing starting point by 4 months, bringing the total sentencing starting point to 49 months’ imprisonment.

15.  The defendant has 2 previous similar convictions.  He committed the present offence 19 months after he was released from prison.  On this occasion, the court is not going to enhance the sentencing starting point. 

16.  The court has fully considered all mitigation done on his behalf, the only valid mitigating factor is his guilty plea, for which he is entitled to a full one-third sentencing discount. Accordingly, the defendant is sentenced to 32 months and 20 days’ imprisonment for this offence.