HKSAR v. MAJID MUHAMMAD

DCCC 75/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 75 OF 2015

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Reasons for Sentence

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1. The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars are that the defendant on 27^th November 2014, unlawfully trafficked in 23.6g of a solid containing 11.4g of cocaine outside the ground floor of Ching Wo House, Tsz Ching Estate, Tse Wan Shan.

Summary of facts

2. The defendant was intercepted by two Police officers who saw him acting furtively outside the charge address. Upon search, a transparent re-sealable plastic bag containing suspected dangerous drugs was found in the right front pocket of his jeans. The defendant remained silent after he was arrested and cautioned in English for trafficking in dangerous drugs. The defendant had $110 cash and a mobile phone on his person.

3. At a later video recorded interview, the defendant claimed under caution that the cash was part of his monthly allowance from International Social Service. One week before the arrest, the defendant met a man known as “Ali GG” in Kowloon Park who provided him with his phone number. The defendant met this Ali GG in the evening of 26^th November in Tsim Sha Tsui, who asked him to deliver the dangerous drugs to Tsz Wan Shan. It was the first time this man had asked the defendant to deliver drugs. He claimed that he did not know at the time that it was drug that he was asked to deliver, but he was offered $200 to make the delivery.

4. The defendant used the mobile phone to contact the Chinese male who was supposed to receive the drugs at Tsz Wan Shan. The man fled upon seeing the Police. The defendant was supposed to meet up with Ali GG at Sham Shui Po MTR Station after the delivery to receive his reward.

5. Government Chemist analysed the drugs found on the defendant and certified it to be 23.6g of a solid containing 11.4g of cocaine. The estimated street value of the cocaine was about $16,416.

Previous Convictions

6. The first trafficking in dangerous drugs was 10^th August 2014, then given Police bail. The defendant committed the present offence whilst on Police bail.

Mitigation

7. The defendant is 26. He was born in Pakistan but left his home country for Hong Kong after a business dispute with a local gangster there, causing him to fear for his life. The defendant is a ‘torture claimant’ and as such is not allowed to work in Hong Kong. The defendant had been consuming cannabis for many years and had taken heroin as well. When he came to Hong Kong he continued with the cannabis and on occasion consumed cocaine. One of the people he bought from was Ali GG, referred to in the facts.

8. This Ali GG contacted the defendant 2 or 3 days before the defendant’s arrest. They met up and agreed to meet again a few nights later. On the night of his arrest, the defendant had been in Tsim Sha Tsui with friends. He had too much to drink and consumed some cannabis. Then he got a phone call from Ali GG asking him to collect some drugs from a Chinese man in Tsim Sha Tsui and then to go to Tsz Wan Shan to meet him. The defendant believed that they would consume drug together that night, he anticipated that perhaps 3g of that mixture would be consumed by himself together with other people. Later on, the defendant collected the drugs from a Chinese man, then he called Ali GG who told him to take a taxi to where he was. That’s what the defendant did and what the Police saw when he arrived in Tsz Wan Shan.

9. One of the consequences of the defendant having been in incarceration for 5 months is that he had been living in a drug free environment in Lai Chi Kok. He has recognized that the problems in his life come from his abuse of and addiction to drugs. He has now given those up and decided to give up drinking and he had been praying 5 times a day. He realized his mistake in coming to Hong Kong and his intention is to return to Pakistan and will give up the torture claim as soon as he can.

Sentencing Guidelines

10. The maximum sentence for trafficking in dangerous drugs on conviction on indictment is that of a fine of $5 million and imprisonment for life.

11. Sentencing guidelines for trafficking in heroin as set down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of a quantity between 10 and 50 grammes is that of 5 to 8 years’ imprisonment.

Sentence

3g for self-consumption

12. Supposing it is accepted that 3g of the 23.6g solid was for the defendant’s self-consumption, that would leave 20.6g of the solid for trafficking. Given that the cocaine content of the solid is 48.3%, 20.6g of solid would give around 9.95g of cocaine, and 3g of solid would contain around 1.5g of cocaine.

13. For trafficking in 9.95g of cocaine, I would have adopted a starting point of 57 months’ imprisonment. For the simple possession of 1.5g of cocaine, I would have adopted a starting point of 6 months’ imprisonment. The total starting point based on the assumption that 3g of the solid was for the defendant’s self-consumption would be 63 months’ imprisonment, without taking into consideration the aggravating factor of the offence being committed whilst the defendant was on Police bail for another trafficking in dangerous drugs offence.

14. This 63 months starting point is also the starting point that I would have adopted if the whole quantity was for the purpose of trafficking, without taking into consideration the said aggravating factor.

15. I find that given that the defendant was unemployed and was receiving only $200 from the International Social Service; given that the defendant admitted that he was receiving a reward of $200 for the delivery of the cocaine; given that there was no paraphernalia for using the cocaine found on his person; given that self-consumption was only mentioned for the very first time today in court; and given that the defendant had specifically admitted at paragraph 8 of the Amended Summary of Facts that at the material time the drugs found on him were all for the purpose of trafficking, the suggestion that 3g of the solid was for the defendant’s self-consumption is inherently improbable, and I reject the contention.

16. Although I understand the difficulties that a torture claimant such as the defendant would have to face living in Hong Kong pending the outcome of his claim, it is never an excuse for him to take part in any illegal activities, in particular trafficking in dangerous drugs. Therefore, having heard what was said on behalf of the defendant in mitigation, I find that there is no reason for me to depart from the sentencing tariff.

17. I adopt a starting point of 63 months’ imprisonment. I find that the fact that the defendant committed the present offence whilst on Police bail an aggravating factor. For that, I will increase the sentence by 3 months, resulting in 66 months’ imprisonment. I find that the only mitigating factor is the defendant’s guilty plea.

18. The defendant is therefore sentenced to 44 months’ imprisonment after plea.

Totality

19. Given that the defendant committed the present offence whilst on Police bail for the previous trafficking in cannabis case, which was committed on 10^th August 2014, and given that there is no connection between the two trafficking cases except for the defendant’s participation, I find that they are not of a single transaction.

20. Having taken a step back to consider, I order that the sentence in our present case be served wholly consecutively to the sentence in KC/1233/15.