HKSAR v. FAKHAR ISLAM

 DCCC136/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 136 OF 2010

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Reasons for Sentence

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1.  Defendant, stand please. Your counsel has rightly pointed out at one time that the main, if not only, mitigating factor in your case is your guilty plea.

2.  You will be entitled to one-third of whatever sentence which will be appropriate after a full trial. This one-third was given not because of your remorse and not because of your personal circumstances. It is purely given to take account of the fact that you saved court’s time.

3.  So if there are any special circumstances of mitigation I would have thought remission should be given to reflect this, including your personal circumstances. But the Court of Appeal said time and again personal circumstances or other mitigating factor doesn’t carry much weight in drug-trafficking offences.

4.  As to the 1st charge, the starting point depends heavily and mainly on the quantity of drugs involved. I’m accepting what your counsel said, you are not a very sophisticated drug trafficker. Maybe there is some naiveté on your part by showing the police agent your genuine ID card, but it is more than that, if you did not show the inspector your ID card or other proof of identity, you might not be able to sell drug to him.

5.  But all this show, as I have said, that you are not a sophisticated drug trafficker. You are not very professional and it may show that you do not have much experience. All this I will take into account in reducing the starting point as far as possible.

6.  For the 1st charge, a lenient sentence, the starting point I can adopt is four and a half years. As I have said, you are entitled to one-third of remission. All the mitigating factors has already been taken into account in deciding on the relatively low starting point. So for the 1st charge I will pass a sentence of 36 months.

7.  As for the 2nd charge, your counsel has urged me to take into consideration of the special circumstances is that you are unable to supply the drug you offer to traffic. I have to sentence you on the basis you offer to traffic the dangerous drug, you may think you may not able to supply the drug, but there is always a danger they would complete the transaction. But that is besides the point, the Court of Appeal said the offence is complete.

8.  Your counsel has shared the same view when you offer to sell the police agent the drugs. But when it come to sentence I can consider the special circumstances, your ability to carry out the deal. I don’t have to accept whatever defendant said, it all depends on the circumstances. But in your case there’s no need for me to call for a Newton Inquiry. You did not ring the police inspector frequent enough, apparently only twice over a long period of time. Your mode of trafficking is quite foolish, unsophisticated and there is no other reason why you would not supply the drug if you were able to get them.

9.  But just the same, offering to sell dangerous drug is a serious offence. But the particular circumstances can allow me to use a starting point outside those below - those, you know, that recommended by the Court of Appeal. The Court of Appeal said it’s not a straitjacket. And this is a special case, I will adopt a starting point of 5 years for the 2nd charge.

10.  Now, technically, the usual argument of totality principle does not apply quite well in the present case. The offences appropriate quite separately and it was a long period apart. On the other hand, of course, it involved the same person, involved the same buyer. I have to weigh actually between the cases when you sell the drug in one go to the inspector and that on two separate occasions. If you sold the drug the drugs to the inspector - same person at one go, the starting point is only 6 years. So if I order the sentence to run consecutively, that will be something not quite right. But more importantly, I have to rely on you are not a very professional trafficker. The evidence suggests that you are very inexperienced, very naïve as your counsel has suggested.

11.  In deciding on the totality of the sentence I have to look at the facts that the drugs were sold to the same person, and by what would it be more serious, if you sold the drugs at one go to the same person than if you sold it, as in the present case, separately. And the total sentence should not be too much more severe than you sold all the drugs at one go to the inspector. I should bear that in mind.

12.  So if I may repeat myself, the 1st charge you will serve a sentence of 36 months. For the 2nd charge, a starting point of 5 years and after one-third remission, I will pass a sentence of 40 months. And as I have said, I use a guideline of a hypothetical situation that you sold the inspector, sold to one person at one go the same amount of drugs. In the hypothetical case, the sentence you are likely to receive is a starting point of 6 years and after one-third remission, it would be 4 years. So the total sentence as I have said in this case should not be exceeding that hypothetical sentence by too wide a margin. This must be so despite the fact that this is quite a separate offence and that it took place between a long period, a matter of months.

13.  I will order 14 months of the 2nd charge to run consecutively to the 36 months of the 1st charge. So altogether you will serve 50 months' imprisonment.