HKSAR v. ISLAM SAFIKUL

DCCC 188/2018

[2018] HKDC 1618

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 188 OF 2018

-------------------------------

-------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  In this case, the defendant, Islam Safikul, is convicted upon his plea of one charge of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts and my findings have been canvassed in my reasons for verdict and I will not repeat them.  Suffice it would be to state that the defendant went to a post office to receive a package from Canada.  Despite the innocent description on the package, the Custom officers found a total of 9.372 kilos of cannabis in herbal form and 13.2 grammes of resinous solid containing 9.09 grammes of THC, also a form of cannabis.

3.  Despite the recent movements advocating for legalising the use of cannabis in other jurisdictions, we are still dealing with the Hong Kong laws.  The court cannot ignore the possible side effects and the collateral illegal activities associated with trafficking in an illegal substance.

4.  Therefore, the fact that there had been calls for legalising the use of marijuana for recreational purposes in other countries is not a relevant consideration in my sentencing.

5.  In Hong Kong, we have a line of authorities setting out guideline for sentencing the offence of trafficking in cannabis.  Both the prosecution and the defence agree on these authorities.

6.  In the case of AG v Chan Chi Man [1987] HKLR 221, the court held that for an offence of trafficking in over 9,000 grammes of cannabis resin, a 4 years’ imprisonment upward would be appropriate as a starting point.  The then-Chief Justice also pointed out that the principal offending element in cannabis is what is known as “THC”.  Therefore, the court should be dealing with the concentration of the substance trafficked rather than its mere bulk.

7.  A further discussion of the appropriate sentencing was carried out in the case of Secretary for Justice v Lee Siu Kei, CAAR 4/2005, where the Court of Appeal said that, at paragraph 13:-

“It is plain, therefore, that when sentencing for an offence of trafficking in herbal cannabis, the starting point should normally be adjusted downwards, if at all, based upon the cannabis resin tariffs. This is to enable the court to take into account the fact that the concentration of THC in cannabis resin is higher than it is in the herbal variety.”

8.  The Court of Appeal further quoted scientific evidence to the effect that the concentration of THC in cannabis resin is about four times higher than the average found in herbal cannabis.

9.  In considering this case, I am aware of the change in opinions over the use of cannabis for recreational purposes.  Yet, the issue this court ought to deal with is how the illegal substance was being trafficked and the possible collateral criminal activities associated with the trafficking itself rather than the baneful effect of THC.

10.  There is no clear authority on the proper starting point for trafficking in simple cannabis in herbal form.  In this case, I take into account of the fact that it was a large quantity and the fact that it was posted from another country.

11.  After considering these two factors, I would adopt 3½ years as a starting point and, taking into consideration of the international element, I would add 6 months.  Therefore, the proper starting point is 4 years’ imprisonment.

Mitigations

12.  I turn to consider the mitigating circumstances urged upon by the defence counsel. 

13.  The defendant is 30 years of age, a Bangladeshi national, living in Hong Kong as an asylum-seeker.  He is married with a wife in Hong Kong where basically he is living on the kindness of strangers, albeit on very stringent terms.

14.  In 2016 he had a previous conviction of possession of dangerous drugs for which he was sentenced to 2 months’ imprisonment.

15.  While the plight of the asylum-seeker is something we would sympathise with, in the defendant’s case, in my view, it is not a valid mitigating factor.  He is here living on the charity of the Hong Kong government and the international community.  He chose to commit a crime and he would have to accept the consequence of his choice.  Therefore, I do not consider his background a valid mitigating factor.

16.  The defence counsel also mentioned that he was only a foot soldier under the direction of a character called “Ali”.  I note that no further information was furnished about Ali.

17.  Assuming that the defendant’s contentions were true, he was not exactly an entirely innocent party.  He was asked to take delivery of the parcel and transport it to another address in Jordan, for which he was promised $30,000. Without his participation, the persons as alleged by him to be really responsible for the illegal act could be caught much easier.  Therefore, his role might be a small one, it was a crucial one in the criminal design.

18.  Having considered the submissions as a whole, the only valid mitigating factor is the fact that he pleaded guilty and, as consistent with the authorities, he will be accorded a one-third discount.

19.  Therefore, the total starting point of 48 months is now reduced down to 32 months’ imprisonment.

20.  I have also reviewed his background and the situations of his wife and his family in Bangladesh.  I do not see any valid factor upon which this court is justified to exercise further act of clemency by reducing his sentence.

21.  He is therefore sentenced to a term of imprisonment for 32 months, to take effect immediately.