HKSAR v. BIPLOB S M

DCCC 523/2020

[2021] HKDC 800

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 523 OF 2020

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Reasons for Sentence

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1.  The defendant, Mr Biplob, has pleaded guilty to a single charge of trafficking in dangerous drugs. The narcotic contents of the drugs concerned are 19.32 grammes of ketamine and 0.98 grammes of methamphetamine hydrochloride.

2.  The facts show that the defendant was intercepted on a routine patrol in Sham Shui Po.  He was subject to a body search.  Various items were found upon him, one of which was a plastic bag which contained within other plastic bags the ketamine and methamphetamine hydrochloride the subject of this indictment.

3.  At the time of the arrest the defendant was found to have some $1,515 in cash with him.  At the time of his arrest the defendant also said that the drugs were for his own consumption.  He gave a further explanation in the video-recorded interview conducted with him later on 7 March 2020.

4.  The total estimated price of the drugs found upon the defendant was $12,132.96 and the defendant admits his possession of the various drugs detailed in the indictment for the purpose of unlawful trafficking in them.

5.  In the defendant’s antecedents we find that he is aged 48 and a man who originated from Bangladesh.  He has a number of previous convictions in the past dating back to the year 2000.  Of relevance today are the convictions in 2013 and 2019 for possession of a dangerous drug which he was sentenced to terms of imprisonment of 4 months’ imprisonment and 9 months’ imprisonment.

6.  Further mitigation shows that the defendant is a Bangladeshi national educated up to secondary school in Bangladesh.  He has a mother in Bangladesh aged 63 years.  He came to Hong Kong in 1999, was married here in 2015 to an Indonesian lady.  They have a three-year-old daughter.  The defendant is apparently a Form 8 holder becoming one in 2006.  His wife also is a Form 8 holder.

7.  In mitigation, I am told the defendant started abusing dangerous drugs in 2010, namely, ketamine and ‘Ice’.  A part of the submissions made in mitigation is that a part of the drugs that were found on the defendant were for his own use.  The proportions being that half of the ketamine, namely, 9.66 grammes, and all of the small quantity of ‘Ice’ at 0.98 grammes, would have been for the defendant’s own self-consumption. It is said he is a habitual user and that there is evidence in the prosecution case which supports that contention.

8.  Further mitigation submissions show the defendant has pleaded guilty at the earliest available opportunity.  He has pleaded guilty which would entitle him to a one-third discount in sentencing from the final arrived at the starting point for sentence.  There is no dispute as to that.

9.  The approach to sentence must be based on the general guidelines for trafficking in these particular drugs.  There are two drugs concerned so we are dealing with what can be described as a cocktail of drugs here.  The tariff for sentencing after trial in relation to the drug methamphetamine hydrochloride, also known as ‘Ice’, is up to 10 grammes is 3 to 7 years’ imprisonment.  Here, we are dealing with a small quantity of 0.98 grammes. 

10.  As far the drug ketamine is concerned the guideline is that between 10 to 50 grammes a sentence of imprisonment of between 4 to 6 years’ imprisonment should be imposed.  The guidelines for that can be found in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

11.  There is more than one type of dangerous drug. The court has a number of options in approaching a case that involves that. The court can adopt either an individual or a combined approach.  The combined approach involves a calculation of the applicable sentence for what is described as the more or most serious drug in terms of purity, then taking into account any significant quantities of other drugs.  The approach itself must be done in a realistic and common-sense manner and the conclusion must be tested against what are described as the arbitrary, the conversion and ratio tests.

12.  The drug to be mainly trafficked in this case was, of course, the ketamine, the defendant saying that the ‘Ice’ was for own consumption and half of the ketamine to be trafficked.  The ketamine, of course, consists of the vast bulk of the drugs in quantity.  I consider it appropriate in this case to adopt the general guideline with respect to ketamine with the addition of a smaller quantity of ‘Ice’ and approach that in what is described as a realistic and common-sense manner.  This would mean an overall starting point of some 5 years for the ketamine, and I would add a further 6 months’ imprisonment to that for the presence of ‘Ice’ in the drugs to be trafficked.

13.  As far as the starting point for sentence is concerned there are also two additional factors to take into account.  Firstly, that the defendant is a Form 8 holder and, secondly, that we are dealing with a cocktail or mixture of drugs which is also an aggravating factor.  Taking those two factors into account and adding the existing starting point of five and a half years would lead to a final overall starting point for consideration by the court of 6 years’ imprisonment or 72 months.

14.  Now I will deal with the mitigating factors. The major mitigating factor in this case besides the plea of guilty is the defendant’s what is described as self-consumption.  As I have already indicated, the defendant asserts that half of the ketamine and all of the ‘Ice’ would be for his own consumption.  That can be seen in paragraph 16 of the submission made in mitigation.

15.  It is the case that when all or part of the drugs are intended for the trafficker’s own consumption the assumed discount of sentence could be or should be, depending on the circumstances, between 10 to 25 per cent of the basic starting point.  This can be found in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 at paragraph 19. 

16.  Of course, this is posited on the basis that the drugs to be consumed by way of self-consumption would be what are described as a significant proportion of the drugs.  Support for that can be found at HKSAR v Cheung Wai Man [2018] HKCA 731.  A significant proportion has not been definitively outlined as a proportion of the drugs.  The course, “significant” must denote that a major part of the drugs were for the defendant’s own consumption.

17.  In support of the defendant’s proposition that a significant proportion of these drugs were for his own consumption is the case that the defendant is on his own criminal record can be seen to be a drug consumer.  In his antecedents statement he described himself to the police as a drug addict.  So there is evidence to support the defendant’s claim of own consumption.

18.  Secondly, it is also found on the defendant’s admission into custody that he tested positive for amphetamine which would suggest the consumption of methamphetamine.

19.  I find that in this case there is evidence to support the defendant’s proposition in mitigation that a significant proportion of the drugs found upon him would be for his own consumption.

20.  There is circumstantial evidence in the case sufficient to establish that and there is no need for the court to involve itself in a Newton inquiry into that.  This would mean that the defendant would be entitled as a discount from the starting point a discount that would be set out between 10 to 25 per cent of that starting point.  There is no need for the court to detail the exact proportion that it considers should be taken of that 10 to 25 per cent starting point.

21.  In this case I have determined that from the starting point for the defendant’s self-consumption there should be a further deduction of 15 months’ imprisonment from the original starting point which will lead to a starting point now 57 months’ imprisonment and the defendant is entitled to one-third discount from that figure.  That would lead to a final sentence of 38 months’ imprisonment for this offence. 

(Discussion re calculation of sentence)

22.  So the sentence of the court will be one of 38 months’ imprisonment.