HKSAR v. ALAM SAYED

DCCC 426/2018

[2018] HKDC 1284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 426 OF 2018

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Reasons for Sentence

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1.  Defendant pleaded guilty to 2 charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.  Defendant is a Form 8 holder from India.  At around 8.10 pm on 25 January 2018, police saw defendant exiting Flat C, 3rd Floor, 228 Reclamation Street, Yau Ma Tei, Hong Kong, and acting furtively.  The police intercepted defendant.  He said he lived in Room 2 of the flat and intended to go out to buy cigarettes. 

3.  Upon search, the police found in the bag that defendant was carrying an opened food packaging bag which contained 504 grammes of cannabis resin (Charge 1 drug) and in the pocket of defendant’s trousers the keys to the room.  The police also searched the said room and found on the table one plastic bag containing 5.67 kilogrammes of cannabis resin (Charge 2 drug) and one electric balance.  The estimated street value of Charge 1 drug was about $39,800 and that of the Charge 2 drug was $447,900.

4.  In the video recorded interview, for Charge 1, defendant asked for forgiveness and said he would plead guilty.  The item shown to him was cannabis.  He further said on 24 or 25 January 2018, the day of arrest or the day before, his friend gave him around 6 kilogrammes of cannabis in 2 batches:  around 3 to 4 kilogrammes in the morning and around 2 kilogrammes in the evening.  The drugs found on him were part of the second batch.  The rest of the drugs were in his home.  He bought some of the cannabis even though he had yet to pay his friend.  His friend would also come back to take some of the cannabis back.  He would only consume a little of the cannabis.  Even if he only has half kilogramme, he could survive.  The drugs he bought were for self-consumption, but if any of his friends come, he would also give some to his friends to consume.  His friends would pay him for the drugs. He had yet actually consumed the drugs, as he wanted to buy cigarettes to consume.  When the police arrested him, he took some of the drugs with him to buy cigarette because he wanted to smoke it first.  He would only give it to his friends if he liked it.

5.  For Charge 2, from the video recorded interview, defendant admitted that the item shown to him was cannabis. It belonged to his friends, but because the police found it at his home, it was his.  He received the cannabis from a friend in the morning of 25 January 2018 that is the day of his arrest.  The friend would keep the cannabis at his residence for 1 to 2 days or a week, then take them back.  He would receive $500.  He thought he could make some money, around 500 to 1,000, while his friend who rented the room and allowed him to stay at the room had left for India.  The friend did not know anything about the drugs. 

6.  The drugs were originally in small packages.  His friend removed them from the packages and he put them into one pack.  He had an electric balance at home, which was used to weigh.  He had 200 kilogrammes of dates at home and would separate them into 5 kilogrammes per pack.  When the friend came up to the room, the friend also used the balance to weigh the cannabis.  He takes a little cannabis, around once in a week or 10 days. 

7.  Defendant now admits having possessed the Charge 1 and Charge 2 drugs for the purpose of unlawful trafficking.

8.  Defendant aged 43, a Form 8 recognizance holder.  He had 12 previous criminal convictions.  Most of them are shopliftings, but with one similar trafficking in 2008 and 2 possession of dangerous drugs in 2003 and 2015.

9.  Mr Massie submits that the defendant came from India to Hong Kong about 2007 and now as asylum seeker.  As he cannot work in Hong Kong, he had been used to take care of the drugs and that also explained why he also kept quite some criminal records in the past. Mr Massie further submits that the overall quantity was just about 6 kilogrammes and that falls into the low category, from 3 to 4 years’ imprisonment as laid down in the guideline.  Defendant pleaded guilty at the earliest opportunity and hoped for a lenient sentence.

10.  Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal in AG v Tuen Shui Ming [1995] 2 HKCLR 129 had already laid down the tariff for trafficking in cannabis resin, where, for under 2,000 grammes, up to 16 months; over 2,000 grammes, 16 to 24 months; over 3,000 grammes, 24 to 36 months; and for over 6,000 grammes, 36 to 48 months. 

11.  In the present case, the total quantity is about 6 kilogrammes and worth over HK$480,000, so, adopting the guideline, more than 3 years’ imprisonment could be adopted.  Not to mention his previous similar criminal convictions and also for Form 8 recognizance holder, the Court of Appeal in HKSAR v Junaid Ahmed CACC 79/2017, also affirmed the decision to enhance the sentence for offenders of such status.

12.  So for Charge 1, involving 504 grammes cannabis resin, I adopt 12 months’ imprisonment as starting point, and that should further be enhanced 3 months for defendant’s background and status, but that could be reduced to 10 months upon his guilty plea.

13.  And for Charge 2, involving 5.67 kilogrammes of cannabis resin, 33 months’ imprisonment should be adopted and then 3 more months to be enhanced, and that be further reduced to 24 months of his plea.

14.  And, lastly, on totality principle, I assess that the overall sentence for both charges of 27 months’ imprisonment be appropriate.  So,

Charge 1: 10 months’ imprisonment;

Charge 2: 24 months’ imprisonment;

3 months from Charge 1 be made consecutive to Charge 2, so the overall sentence for both charges be 27 months’ imprisonment.