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CACC 46/2020
[2020] HKCA 954
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 46 OF 2020
(ON APPEAL FROM DCCC NO 792 OF 2019)
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HKSAR |
Respondent |
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CHAUDHRY Mohammad Asif |
Applicant |
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Before: Hon M Poon J in Court
Date of Hearing: 13 November 2020
Date of Judgment: 13 November 2020
Date of Reasons for Judgment: 27 November 2020
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R E A S O N S F O R J U D G M E N T
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1. The applicant pleaded guilty to one charge of Trafficking in dangerous drugs, contrary to s.4(1)(a) of the dangerous Drugs Ordinance, Cap.134 and was sentenced to 4 years and 10 months’ imprisonment by District Court Judge K. Lo, following his plea of guilty to a single charge of trafficking in dangerous drugs, namely 105 grammes of cannabis in herbal form and 9.18 grammes of a crystalline solid containing 9.06 grammes of methamphetamine hydrochloride (commonly known as “ICE”). His application for leave to appeal his sentence was refused. Here are the reasons.
2. The Summary of Facts to which he admitted states that the applicant, a Form 8 holder, was intercepted at around 1743 hours on 8 April 2019 in Tsim Sha Tsui. He was carrying a packet but put that down on the ground when intercepted.
3. At a later video recorded interview, the applicant said that he was given the plastic bag by a friend who asked him to deliver that to a woman waiting at a convenient store nearby. He admitted that he possessed the bag of drugs for the purpose of trafficking.
4. In sentencing the applicant, the judge disregarded the small quantity of herbal cannabis and sentenced him solely on the weight of the narcotics of ICE. She adopted a starting point of 79.5 months for the 9.06 grammes of ICE to which she enhanced by 7.5 months to 87 months imprisonment for the fact that he was a Form 8 holder whilst he committed the present offence. This was then reduced by one third to 4 years and 10 months for his guilty plea. The judge noted that he was in breach of a suspended sentence but taking into account that the present offence was committed nearly at the end of its operation period, she decided against activation.
5. The starting point of 79.5 months’ imprisonment was correctly calculated by the judge in accordance with the sentencing guidelines laid out in HKSAR v Tam Yi Chun[1], namely, that for up to 10 grammes of ICE, 3 to 7 years imprisonment.
6. The applicant submitted that the sentence was excessive. He relied on the case of HKSAR v Mak Ka-leung[2], where he said that the Defendant there was only sentenced to 66 months in respect of 12.9 grammes of ICE and 12 grammes of cocaine. He said that this was his first offence and he had already provided whatever information he had relating to the person who gave him the drugs to the police. He also complained that the enhancement of 7.5 months for his form 8 holder status was disproportionate.
7. Mr Derek Lau, SPP, for the respondent, submits that this application is wholly without merit and should be dismissed. The starting point was wholly in accordance with the guidelines laid down in HKSAR v Tam Yi Chun, and correctly enhanced due to his status as a Form 8 holder: HKSAR v Ali Saif. [3]
Discussion
8. The case of HKSAR v Mak Ka-leung, supra, concerned a combined approach adopted in sentencing. The judge adopted 7 years as the starting point as it was accepted that the Defendant was a user of cocaine. There was no aggravating feature as a Form 8 holder as in the present case. In any event, sentencing in this type of offence in accordance with the tariffs is largely based on the weight of the narcotics rather than by comparison to cases. The judge was correct in adopting the 79.5 months as starting point. The fact of the applicant’s status as a Form 8 holder is an aggravating feature and according to Ali Saif, an enhancement of not less than 6 months should be imposed.
9. There is no cause for complaint with the sentence the judge imposed on the applicant, and accordingly his application for leave to appeal against sentence is refused.
10. The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but if he is minded to do so, he should bear in mind that he may face the consequences of a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.
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(Maggie Poon) |
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Judge of the Court of First Instance |
Mr Derek Lau, SPP of the Department of Justice, for the respondent
The applicant appeared in person
[1] [2014] 3 HKLRD 691
[2] HCCC 127/2019
[3] CACC 309/2017
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