HKSAR v. SHAIK ABDUL ARSHAD

DCCC 1110/2017

[2018] HKDC 1281

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2017

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant is convicted after trial of one count of trafficking in dangerous drugs.

2.  The dangerous drugs involved are (a) 22 transparent resealable plastic bags containing 81.60 grammes of cannabis in herbal form; (b) one transparent resealable plastic bag containing 35 sticks, 167.00 grammes, of cannabis resin wrapped in plastic; (c) one transparent resealable plastic bag containing 8 yellow tablets, 1.20 grammes of ecstasy; (d) one black plastic box containing 17 transparent resealable plastic bags containing 5.24 grammes of cocaine.  The total estimated street value of all dangerous drugs found was about HK$36,000.

3.  The defendant is 24 years old, born in India in 1993.  I am told that he was from Calcutta and received primary school education in India.  He was issued with a Form 8, which is a form for asylum seekers in Hong Kong, since December 2014.  He had three previous convictions in Hong Kong since 2015, two of which were concerned with possession of dangerous drugs, but no trafficking of dangerous drugs conviction.

4.  It is trite law that unless very exceptional circumstances, for example extreme youth, is involved, the personal backgrounds and general circumstances of a defendant would not be taken into consideration in assessing the appropriate sentence for the offence involved in the present case.

5.  For ecstasy, the tariffs were set in SJ v Hii Siew Cheng [2009] 1 HKLRD 1.  In that case it was held that the sentence for trafficking between 1 to 10 grammes of ecstasy would be 2 to 4 years.  As for cocaine, it was held in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that the tariff for trafficking in heroin in R v Lau Tak Ming [1990] 2 HKLR 370, where it was held that trafficking in up to 10 grammes of heroin would be 2 to 5 years, should apply.

6.  It is obvious that the ecstasy and cocaine involved in the present case attract very similar sentencing tariffs.  I will treat the two drugs together as if all were cocaine, that is, a total of 6.44 grammes.  This quantity still falls within the same band of sentencing tariff for this drug.

7.  The tariff for the cannabis in herbal form and cannabis resin involved in this case are much lower than the two much more potent dangerous drugs mentioned above (see HKSAR v Chor Lui [2001] 3 HKLRD 95 for herbal cannabis and Attorney General v Tuen Shui Ming & Another [1995] 2 HKCLR 129 for cannabis resin).  This case involves four different types of dangerous drugs separately packed and placed together.  In HKSAR v Chan Yuk Leong (unreported) CACC 318/2013, the Court of Appeal stated:-

“23. …… the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.”

“24. It has been said that one aggravating feature is the ability of the trafficker to cater to a wider market.”

“25. More importantly is the effect on the users of combinations of dangerous drugs.”

At least the first aggravating feature is applicable to the present case.

8.  Having taken all relevant factors into consideration, I adopt 4 years as the starting point.  There is no suggestion that any part of the dangerous drugs involved was for the defendant’s own self-consumption.  The defendant is convicted after trial.  I see no other mitigating factor warranting any further discount.  The defendant is therefore sentenced to 4 years’ imprisonment.