HKSAR v. MD EMON SHA

CACC 97/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 2015

(ON APPEAL FROM DCCC NO. 927 OF 2014)

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J U D G M E N T

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1.  The applicant originally faced a total of four charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 13 February 2015, he pleaded guilty to Charges 3 and 4 before HH Judge Casewell in the District Court, who ordered that Charges 1 and 2 be left on the court file. By Charge 3, it was alleged that the applicant had, on 17 August 2014, unlawfully trafficked in 1.41 grammes of a crystalline solid containing 1.39 grammes of methamphetamine hydrochloride, commonly known as “Ice”. By Charge 4, it was alleged that the applicant had, on 22 August 2014, unlawfully trafficked in 1.48 grammes of a crystalline solid containing 1.46 grammes of “Ice”. On the applicant’s admission of the amended Summary of Facts, the judge found the applicant guilty of Charges 3 and 4, and adjourned the proceedings to 5 March 2015, pending a Probation Officer’s background report.

2.  At the adjourned hearing on 5 March 2015, the judge imposed on the applicant a sentence of 2 years’ imprisonment for each of Charges 3 and 4, and ordered that 6 months of the sentence on Charge 4 be served consecutively to the 2-year term in respect of Charge 3, resulting in an overall sentence of 2 years and 6 months’ imprisonment.  The applicant now seeks leave to appeal against this sentence.

The facts

3.  Police intelligence revealed that a drug trafficker, using the name “Rahoul”, had been using a certain mobile telephone number to contact prospective purchasers of dangerous drugs.  Accordingly, a woman police officer was tasked to act as an undercover agent to purchase dangerous drugs from this person.

4.  In the evening of 17 August 2014, the officer called Rahoul on the mobile telephone number to arrange a purchase of dangerous drugs.  As a result of this contact, at around 9:53 pm the same evening, she met the applicant outside an address at D’Aguilar Street, Central, Hong Kong, and bought two packets of dangerous drugs from him for HK$1,300.  On subsequent analysis by a Government Chemist, the two packets were found to contain 1.41 grammes of a crystalline solid containing 1.39 grammes of “Ice” (Charge 3).

5.  At around 10:13 pm on 22 August 2014, the same officer called the applicant again in order to purchase more dangerous drugs from him.  Later that evening, they met up at the same place and walked to the junction between D’Aguilar Street and Wellington Street, where the applicant sold the officer another two packets of “Ice”, again for HK$1,300.  The officer then signalled to her colleagues nearby, who arrested the applicant.  The HK$1,300 which the officer had paid to the applicant was recovered, and the mobile telephone with which the applicant had been communicating with the officer was also seized from him. The two packets were subsequently found to contain 1.48 grammes of a crystalline solid containing 1.46 grammes of “Ice” (Charge 4).

Mitigation

6.  The applicant, a person of hitherto previous good character, was 30 years of age at the time of the commission of the offences.  He had arrived in Hong Kong from Bangladesh as a refugee in 2007.  Two years later, in 2009, the applicant married a Hong Kong resident.  A son was in due course born, who was 3 years old at the time of sentence.  The applicant has yet to obtain a work permit in Hong Kong.  A background report showed that the applicant’s wife was pregnant and that the expected date for delivery of the child was in early May this year.  The applicant has this morning produced to me a certified copy of the registration of the birth of his second child on 5 May this year.  In the interview with the Probation Officer who compiled the background report, the applicant said he had trafficked in the dangerous drugs for financial gain, without properly considering the consequences of so doing.

Reasons for sentence

7.  In sentencing the applicant, the judge referred to the sentencing guidelines for trafficking in up to 10 grammes of “Ice”, namely 3 to 7 years’ imprisonment after trial[1], and adopted a starting point of 3 years’ imprisonment in respect of each of Charges 3 and 4.  Giving the applicant the usual one-third discount for his guilty plea, the judge sentenced him to 2 years’ imprisonment in respect of each of the two charges.  Noting that the two offences were committed on separate occasions but bearing in mind the principle of totality, the judge ordered that 6 months of the sentence on Charge 4 be served consecutively to the 2 years’ imprisonment for Charge 3, resulting in an overall sentence of 2 years and 6 months’ imprisonment.

Grounds of appeal against sentence

8.  In his hand-written statement attached to the Notice of application for leave to appeal against sentence filed on 1 April 2015, the applicant stated that he had to look after his wife (who was then pregnant) and his 3 year-old son.  As I have said, his wife has since given birth to the applicant’s second child in May this year.  He asks to be released early so that he can look after his children and family.

Consideration

9.  I cannot at this stage see any valid criticism of the 3-year starting points in respect of each charge of trafficking or of the fact that the sentence on Charge 4 was made partly consecutive to the sentence on Charge 3.  Whilst the quantities were small, these were separate and distinct acts of trafficking in a very serious dangerous drug five days apart, which clearly demonstrated a persistent pattern of criminal conduct by the applicant.  Therein lay the seriousness of the two offences: see HKSAR v Lui Wai Kam (unrep., CACC 400/2009), at para’s 10 and 11.  In that case, the Court cited with approval the observations of an earlier Court decision in HKSAR v Wong Nam Ngan (unrep., CACC 372/2001) that:

“… although the quantities of the various drugs in each of the charges in this case are not large, it was the applicant’s persistence in the trafficking activities which made this a serious case.”

Conclusion

10.  Application for leave to appeal against sentence is therefore refused.

11.  The applicant is duly advised of his right to renew his application to the Court of Appeal and the consequence of so doing, which may include a direction for loss of any time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of this application.

[1] Attorney General v Ching Kwok Hung [1991] 2 HKLR 125; HKSAR v Tam Yi Chun [2014] 3 HKLRD 691