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HCCC 446/2017
[2018] HKCFI 2231
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 446 OF 2017
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| Date: |
6 August 2018 at 2.40 pm |
| Present: |
Mr Lenny Cheng, SPP(Ag) of the Department of Justice,
for HKSAR |
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Mr Neil Mitchell, instructed by B Manek & Co, assigned by DLA, for the accused |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant, Mr Teuhidul Islam, pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, during the committal proceedings.
The particulars of offence are that the defendant on the 10th day of February, 2017, in Room 8, Flat E3, Lily Guest House, 8th floor, Block E, Chungking Mansions, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon in Hong Kong, unlawfully trafficked in dangerous drugs, namely 755 grammes of cannabis in herbal form, 347.59 grammes of a solid containing 255.92 grammes of cocaine, 15.4 grammes of a mixture containing 11.8 grammes of heroin hydrochloride, 61.6 grammes of a crystalline solid containing 59.3 grammes of methamphetamine hydrochloride, 8.86 grammes of a solid containing 4.08 grammes of ketamine and 30 tablets weighing 9.59 grammes containing chloroethcathinone.
He is committed to this court for sentence.
Facts admitted
At 0130 hours on 10 February 2017, the defendant, a 31-year-old Bangladesh male holding Form 8 recognisance, was intercepted by the police when he was using a key to unlock the door of Room 8 of Lily Guest House at Flat E3, 8th floor, Block E, Chungking Mansions, 36-44 Nathan Road, Tsim Sha Tsui. Inside the defendant's left front trousers pocket, there was a black plastic bag with a transparent resealable plastic bag inside containing 11.9 grammes of a solid containing 7.86 grammes of cocaine.
At various places inside Room 8 of the guest house, police found 9 plastic bags containing a total of 347.59 grammes of a solid containing 255.92 grammes of cocaine, one plastic bag with 61.6 grammes of a crystalline solid inside containing 59.3 grammes of methamphetamine hydrochloride, one plastic bag with a mixture of 15.4 grammes inside containing 11.8 grammes of heroin hydrochloride, one plastic bag with 30 tablets of total weight of 9.59 grammes inside containing chloroethcathinone, two knives containing respectively traces of cocaine and 0.01 gramme of a solid containing cocaine, two electronic scales and two plastic packets containing a total weight of 755 grammes of herbal cannabis.
The defendant was arrested for the offence of trafficking in dangerous drugs. He had on his person $1,150 in cash, a mobile telephone and the key and keyboard to open the room of the guest house.
In a subsequent video-recorded interview conducted under caution, the defendant stated, inter alia, he had all the dangerous drugs seized by the police for trafficking, a job he had done for almost two months. He was selling the cocaine found in his trousers pocket for $4,000 to $4,500 and the cannabis for $3,000 to $4,000 per 100 to 150 grammes. The paraphernalia seized were for packing the dangerous drugs. He had rented the room of the guest house for about two weeks.
The guest house operator confirmed that the defendant had rented the room since 30 or 31 January 2017.
The total estimated market value of the dangerous of the dangerous drugs seized was $559,958.
Criminal record
The defendant has 2 previous convictions, the last one was trafficking in dangerous drugs for which he was sentenced to 5 years 6 months imprisonment on 24 May 2013.
Mitigation
The defendant is aged 33. The counsel for the defendant makes a thorough mitigation on the behalf of the defendant. He cites the case of HKSAR v Chan Yuk Leong CACC 318/2013, which gave a full explanation of the absurdity test, conversion test and ratio test to be used in sentencing of trafficking in cocktail drugs by means of a combined approach, an approach he urges the court to adopt. He also helpfully sets out in his written mitigation the sentences of various kinds of dangerous drugs seized in this case according to the respective sentencing guidelines with the exception of chloroethcathinone which he confesses to have no knowledge about.
He also fairly points out the aggravating features in this case, namely, more than one type of dangerous drugs being trafficked, similar conviction of the defendant and the defendant being a form 8 recognizance holder. He urges the court to take into consideration the guilty plea and all the mitigating circumstances in sentencing the defendant.
Sentence
As rightly pointed out by the counsel for the defendant, the sentencing tariffs for cocaine and heroin hydrochloride are the same. The amount of cocaine and heroin hydrochloride in this case are 255.92 grammes and 11.8 grammes respectively, making a total of 267.72 grammes.
According to R v Lau Tak Ming [1990] 2 HKLR 370, the starting point for trafficking in 200 to 400 grammes of heroin hydrochloride is 12 to 15 years imprisonment. The starting point for the total amount of cocaine and heroin hydrochloride in this case alone is approximately 13 years imprisonment.
According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for trafficking in 10 to 70 grammes of methamphetamine hydrochloride, commonly called ‘Ice’, is 7 to 11 years imprisonment. The starting point for trafficking in 59.3 grammes of ‘Ice’ in this case alone is approximately 10 years 3 months imprisonment.
According to HKSAR v Hii Siew Cheng [2008] 3 HKC 323, the starting point for trafficking in the amount of 4.08 grammes of ketamine, as in this case, is 2 years 8 months imprisonment.
According to AG v Tuen Shui Ming & Anor [1995] 2 HKC 789 and HKSAR v Chor Lui [2001] 3 HKLRD 95, which is cited by the counsel for the defendant, the amount of 755 grammes of herbal cannabis in this case will bring about a starting point of less than 2 months imprisonment.
According to the Dangerous Drugs Ordinance, cathinone is a controlled drug. In the Government Chemist certificate and the Summary of Facts, chloroethcathinone is described as a derivative of 2-amino-1-phenyl-1-propanone, which is actually cathinone. Cathinone is known for producing euphoric effects and being addictive in a way similar to amphetamine.
It is not known what the exact amount of narcotics in the chloroethcathinone tablets is. The amount is, in any event, relatively small. In view of the large quantity of the cocaine and heroin hydrochloride, its impact on the quantum of sentence is very limited. The dangerous drug is also very uncommon. The court is, therefore, of the view that this is not an appropriate case to call expert evidence about the nature and effect of the drug.
The amount of ketamine involved in this case is also relatively small as compared to the quantity of cocaine and heroin hydrochloride. Similarly, its impact on the quantum of sentence in this case is limited.
The court agrees with the counsel for the defendant that the combined approach should be adopted in the present case. The cocaine and heroin hydrochloride being the majority of the narcotics in this case are taken as the base for sentencing. The amount of 59.3 grammes of ‘Ice’ is equivalent to about 134 grammes of cocaine or heroin hydrochloride. With this added to the amount of cocaine and heroin hydrochloride in this case, it comes to a total weight of 401.72 grammes, which brings about a starting point of about 15 years imprisonment, according to sentencing guidelines in Lau Tak Ming.
As pointed out in a number of authorities, sentencing is not a mathematical exercise. The court, however, must not lose sight of the importance of consistency in the sentencing of dangerous drugs cases. Taking into consideration the amount and nature of the other dangerous drugs in this case, the court is of the view that a starting point of 15 years 3 months imprisonment is just and appropriate.
The defendant committed the present case shortly after serving a sentence of 5 years imprisonment for a similar offence. Taking this and all the aggravating factors as set out in the mitigation of the counsel for the defendant, the court adopts a final starting point of 16 years 3 months imprisonment.
Giving credit to the defendant for his plea of guilty and other mitigating circumstances, the court sentences the defendant to 10 years 2 months imprisonment.
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