HKSAR v. ISLAM AZHARUL

DCCC 891/2018

[2019] HKDC 423

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 891 OF 2018

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleads guilty to one count of trafficking in dangerous drugs.

Facts

2.  In the evening of 28 May 2018, the defendant came out of his room in a guesthouse in Tsim Sha Tsui.  The police found in his bag the following:-

(a) a electronic scale; and

(b) a white bag containing:

(i) 26 small bags of 24.2 grammes of solid containing 14.3 grammes of cocaine;

(ii) 10 small bags of 46.5 grammes of herbal cannabis;

(iii) 46 packets of cannabis resin weighing a total of 279.39 grammes;

(iv) 26 tablets and one tablet fragment containing a total of 7.56 grammes of 3,4-Methylenedioxymethamphetamine (commonly known as “MDMA” or “Esctasy”); and

(v) one knife with traces of cocaine with amphetamine and Tetrahydrocannabinol.

3.  The estimated street value of the drugs mentioned above was approximately HK$73,000.

4.  When the defendant was arrested, he had $1,800 with him.

5.  The defendant had rented a room in the said guesthouse since 12 May 2018.

6.  The defendant remained silent when he was arrested.  Later, he denied his guilt.  Now, in court, the defendant admitted he possessed all the dangerous drugs for the purpose of trafficking.  There is no claim of own consumption of any significant proportion of any of the drugs in question.

7.  While the defendant was being remanded in Lai Chi Kok Reception Centre, his urine was tested positive for amphetamine and cocaine.

Record

8.  The defendant is aged 27.  He came from Bangladesh in 2014.  He has claimed non-refoulement protection; it is still in the process.  The defendant has no previous criminal record in Hong Kong.

Mitigation

9.  The defendant’s counsel says the defendant is a married man.  His wife has also come to Hong Kong.  Their three young children were being looked after by the defendant’s grandparents.  Prior to coming to Hong Kong, the defendant ran a shop in his country.

10.  Defence counsel says the defendant was also a user of amphetamine and cocaine. However, there is no claim of any own consumption of any significant proportion of the drugs in question.

11.  Defence counsel points out there were four drug components in the charge.  Cocaine and MDMA were the more potent ones.  Defence counsel asks me to convert the MDMA part into cocaine for the purpose of sentencing.

12.  Defence counsel says if the court would not adopt the conversion approach, the court should then consider the individual drugs and adopt the right totality in reaching the final sentence.

13.  Defence counsel suggests the court should adopt a starting point of 5 years’ imprisonment for the cocaine part and 3 years’ imprisonment for the MDMA part.  For the cannabis resin and herbal cannabis, the starting point should be one of 2 to 3 months’ imprisonment.

14.  Defence counsel says the overall starting point for the charge as a whole should not exceed 7 years’ imprisonment in any event.  Defence counsel says the defendant should be given due credit for his plea of guilty at the earliest opportunity.

Sentence

15.  There are four drug components in the charge, namely 14.3 grammes of cocaine, 7.56 grammes of MDMA, 279.39 grammes of cannabis resin, and 46.5 grammes of herbal cannabis.

16.  The Court of Appeal has set down guidelines for the unlawful trafficking of cocaine, MDMA and cannabis resin.  There is no tariff for trafficking in herbal cannabis.

17.  Defence counsel urges me to adopt the conversion approach to convert MDMA into cocaine for sentencing.  I would not.  Cocaine is cocaine; MDMA is MDMA.  If a defendant chose to traffic in more than one kind of drugs, I do not see any logic why one drug should be artificially converted into another just in order to give him a lighter sentence.  In fact, trafficking in more than one kind of drugs at the same time should be seen as an aggravating factor.

18.  I would look at the individual components of the drugs in question and then consider the criminality of the charge properly.

19.  According to the established tariff, trafficking in cocaine of more than 10 grammes but not more than 50 grammes would attract a starting point of 5 to 8 years’ imprisonment.  The defendant trafficked in 14.3 grammes of cocaine.  The starting point for this component should be 5 years and 3 months’ imprisonment.

20.  Trafficking in over 1 gramme to no more than 10 grammes of MDMA would attract a starting point of 2 to 4 years’ imprisonment.  The defendant trafficked in 7.56 grammes of MDMA.  The starting point for this component should be 3 years and 6 months’ imprisonment.

21.  Trafficking in under 2,000 grammes of cannabis resin would attract up to 16 months’ imprisonment.  On the other hand, there is no tariff for trafficking in herbal cannabis.  The defendant trafficked in 279.39 grammes of cannabis resin and 46.5 grammes of herbal cannabis.  The combined starting point for such cannabis resin and herbal cannabis should be one of 3 months’ imprisonment.

22.  The defendant had all the four kinds of drugs with him for the purpose of unlawful trafficking.  The starting point for the charge as a whole should be one of 7½ years’ imprisonment.  The defendant pleads guilty at the earliest opportunity.  He is entered to one-third discount.  He is thus sentenced to 5 years’ imprisonment.