HKSAR v. RAHMAN MD MOTALEB

DCCC 111/2021

[2021] HKDC 1280

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Mr Rahman pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars are that he, on 4 November 2020, near the junction of Bristol Avenue and Carnarvon Road, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 23.97 grammes of cannabis in herbal form and 4.57 grammes of a crystalline solid containing 4.49 grammes of methamphetamine hydrochloride.

Facts admitted by Mr Rahman

3.  Mr Rahman was a Form 8 recognizance holder.  On the charge date, at about 5:20 pm, at the charge location, a patrolling police constable PW1 stopped Mr Rahman for enquiries because the latter was wandering around furtively.

4.  Upon body search, the following items were found in the left front pocket of Mr Rahman’s trousers:-

(a)  One white envelope containing 4 plastic bags containing a total of 23.97 grammes of cannabis in herbal form;

(b)  One tissue paper containing a total of 6 small plastic bags containing a total of 4.02 grammes of a crystalline solid containing 3.95 grammes of methamphetamine hydrochloride; and

(c)  One tissue paper containing one small plastic bag containing 0.55 gramme of a crystalline solid containing 0.54 gramme of methamphetamine hydrochloride.

5.  Mr Rahman said to PW1, “Please give me a chance, this thing is given another people.”  He was then arrested.

6.  Also found on Mr Rahman were two mobile phones and cash of $120.

7.  The estimated market value of all the drugs was $7,609.50.

8.  Mr Rahman now admits he possessed the drugs for the purpose of trafficking.

Criminal record

9.  Mr Rahman has a previous clear record.

Antecedents

10.  Mr Rahman is aged 33 (32 at the time of the offence), educated to Secondary 4 in Bangladesh, unemployed.  He is the holder of Form 8 recognizance.  He is married but lived alone in Austin Road.

Mitigation

11.  Originally, Ms Nisha Mohamed of counsel was assigned by the Director of Legal Aid to act for Mr Rahman in the plea and sentence hearing.  However, 5 days prior to the hearing, Ms Mohamed wrote to the court indicating the legal team would apply for discharge on the day of hearing.  On the latter date, Ms Mohamed duly appeared and made the application on the basis that the latest reason Mr Rahman gave her for pleading guilty was different from previous ones and led her to feel uncomfortable.  Prosecution had nothing to say; and Mr Rahman had little to say apart from saying that he would still like to plead guilty.

12.  I allowed the application.  Thereafter, Mr Rahman pleaded guilty and agreed the facts and mitigated on his own behalf.

13.  The following is a summary of the mitigation submissions.

14.  Mr Rahman has been in Hong Kong for the last 10 years since August 2011 and did not have a criminal record.  He lives on social welfare with some additional allowance sent from a brother in Bangladesh.  Mr Rahman has some problem with his left hand since birth and became an orphan at youth.  He is remorseful and asks for a chance.

Sentence

15.  Trafficking in a dangerous drug is a serious offence; it is being made more so by the presence of more than one type of drug.  In HKSAR v Cheung Wai Man, CACC 258/2017, at para 46, it was said that “as a general rule where the types of dangerous drugs are similar in potency the “combined approach” would be preferred, whereas the “individual approach” may be better suited for cases where the types are disparate in quantity and potency.”

16.  Here, we have 23.97 grammes of herbal cannabis and 4.49 grammes of ICE. In terms of both quantity and potency, the two types of drugs are disparate.  I am therefore of the view that the individual approach is to be preferred.

17.  Dealing first with the herbal cannabis, in HKSAR v Chor Lui [2001] 3 HKLRD 95, it was said that on a strict mathematical approach calculated downwards from the tariff for trafficking in cannabis resin, the benchmark tariff sentence should be 4 months for trafficking in under 2,000 grammes of herbal cannabis.  In that case, a starting point of 3 months for trafficking in 0.24 gramme of herbal cannabis in a disco where young people lingered was not disturbed on appeal.  I shall adopt the same starting point here.

18.  With regard to the ICE, the tariff sentence for trafficking in up to 10 grammes of the drug is 3 to 7 years’ imprisonment: HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  On a purely arithmetical calculation, the trafficking in 4.49 grammes of ICE should attract a starting point of slightly more than 57.5 months.  I shall adopt that exact figure as the starting point for trafficking in the ICE found in this case.

19.  I bear in mind the two aggravating factors (re-emphasized in HKSAR v Chan Yuk Leong, CACC 318/2013)  that a court when sentencing an offender for trafficking in a cocktail of drugs should note, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note in this case that the two types of drugs were not placed in the same packet though they were all found in Mr Rahman’s left front trouser’s pocket.

20.  Everything considered, I deem it appropriate to simply add the two starting points together to form a global starting point of 60.5 months for trafficking in the two types of drugs found in this case.

21.  Mr Rahman was a Form 8 recognizance holder at the time of the offence. This is an aggravating factor for which I shall further enhance the aforesaid global starting point by 8.5 months (the case of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 considered), making a final starting point of 69 months’ imprisonment.  I have satisfied myself that this is not excessive in the overall circumstances of this case.

22.  Mr Rahman indicated his plea of guilty early and he has made good his indication.  He shall be entitled to the 1/3 discount.  The fact that he is a person of previous clear record does not assist him in a serious case of this kind.  There are no other mitigating factors that will help reduce the sentence either.

(Mr Rahman, please stand)

23.  The sentence for Mr Rahman is 46 months’ imprisonment.