HKSAR v. RASID ABDUR

HCCC 73/2018

[2018] HKCFI 2505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 73 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug and has been committed to this court for sentencing.

The 1st charge is that he trafficked in a dangerous drug, namely 1.82 grammes of a solid containing 1.72 grammes of cocaine.

The 2nd charge, he is charged on the same day to be trafficking in dangerous drugs, namely 6.63 grammes of a crystalline solid containing 6.54 grammes of methamphetamine hydrochloride; 36.92 grammes of a solid containing 21.70 grammes of cocaine; 3.57 grammes of a powder containing 0.79 grammes of cocaine; 2.73 grammes of a mixture containing 2.05 grammes of heroin hydrochloride and 2.73 grammes of a mixture containing 2.05 grammes of heroin hydrochloride; 27.4 grammes of a solid containing 23.8 grammes of ketamine; 6.69 grammes of a powder containing 3.95 grammes of ketamine; 10 tablets containing 1.23 grammes of chloroethcathinone; 4 tablets containing 0.30 gramme of 3,4-methylenedioxy-N-ethylamphetamine; 102 tablets containing 9.92 grammes of 3,4-methylenedioxymethamphetamine; 51.31 grammes of a crystalline solid containing 40.19 grammes of 3,4-methylenedioxymethamphetamine; 0.48 gramme of a powder containing 0.23 gramme of 3,4-methylenedioxy-methamphetamine; 0.88 gramme of a solid containing 0.61 gramme of 3,4-methyleneodioxymethamphetamine; 128.17 grammes of cannabis in herbal form; and 309.92 grammes of cannabis resin.

The defendant had admitted the following facts which is that on 24 May 2017, he was intercepted by police officers coming out of Room 12 at the address given in the charge and when he saw the police officers he tried to return to the room but was stopped by the police.

The police, armed with a search warrant, then escorted the defendant back into Room 12 and upon a search of the defendant’s jeans, a plastic bag containing the drug in Charge 1 was found in his pocket and also a key to the room.

Inside the room, displayed on the bed were the drugs which is the subject matter of Charge 2. Also found in the room in a cabinet was a lighter, an electronic scale, a resealable plastic bag containing 56 empty plastic bags.

Under caution, in a video-recorded interview, the defendant admitted that he is unemployed and he lives on ISS subsidy of $3,200 a month. He claimed that on the day of his arrest, a person nicknamed ‘Sophie’, outside Chungking Mansions, sold him cocaine and he paid $200 for it. And that Sophie told him to go to the room and there would be a key outside and he would take the key, go into the room and get the cocaine. He was told to hang the key back in its original position after he collected the cocaine.

He said that he did go into the room, took a packet of cocaine. He put the key and the cocaine into his own trouser pocket when he saw the police officers. And then he was intercepted by the police. He said that he had consumed cocaine for two months. He denied knowledge of the other items in the room.

The total retail value of the dangerous drugs was about HK$110,000.

Room 12 is a licensed guesthouse and was rented by a male named Kamal Md Masum and the person who rented the room gave the landlord a contact number of a mobile telephone and the mobile telephone seized from the defendant upon his arrest was using the same contact number. The defendant now admits that he was unlawfully trafficking in all those drugs.

Now, the defendant is aged now 45 and is a Form 8 holder. I am informed that he has been in Hong Kong since 2015. He has one previous conviction of possession of dangerous drug for which he was fined and this was one month prior to his arrest for this case.

Now, from the facts, it would appear that the defendant is a trusted person because he was allowed free access to a room full of drugs worth $110,000. The defendant had the telephone number on his mobile phone which is consistent with the mobile telephone given to the landlord of the room by the person who rented the room.

In mitigation, Miss Crebbin admitted on the behalf of the defendant that he was employed in fact as a courier by the owner of the drugs. And if that is the case, as I have noted, he would be a trusted employee of the owner of the drugs, having been given free access.

In mitigation, Miss Crebbin pointed out that he of course pleaded guilty at the earliest opportunity, and also on top of the mitigating factors which was submitted in an earlier hearing this morning prior to the sentencing hearing, that he is entitled not only to one-third off for his early plea, but to a further discount up to 40 per cent from the starting point also prayed in aid in mitigation is the assistance given to Father Wotherspoon.

Now, as far as the calculation of sentence is concerned, having read the authorities cited, I agree with Miss Crebbin that it should be, as far as the sentence for the 2nd charge is concerned, it should be a combined approach, which would give a more reasonable reflection of the drugs.

Now, in relation to the 1st charge, it is simple. It is 1.72 grammes of cocaine and following the guidelines in Lau Tak Ming [1990] 2 HKLR 370, it is recommended that up to 10 grammes the sentence should be 2 to 5 years’ starting point. In this case of 1.72 grammes, I would consider that a starting point of 2½ years would be appropriate and I would enhance it by 1 year because the defendant is a Form 8 holder and he has abused the hospitality of the host country in participating in this offence.

This is his second offence to do with drugs. So taking into account, as I have said, the mitigation, I would determine that he is entitled to about 37 per cent off for both the early plea and the mitigation I had heard in an earlier hearing early this morning. So I would take that into account and therefore reduce the sentence to 2 years and 3 months.

Now, in relation to the 2nd charge, as I said it would be I think overall having considered all the different factors and calculation, I agree with Miss Crebbin that it should be the combined approach.

Now, breaking down the various drugs, heroin and cocaine would give us about 24.54 grammes, then the amount of ‘Ice’ is 6.54 grammes, and ketamine and ecstasy, ecstasy being the 3,4-methylenedioxy-N-ethylamphetamine would give a total of about 70.31 grammes.

Now, as far as the cannabis herbal and cannabis resin is concerned, I agree with Miss Crebbin that it is, taking into account the other drugs, it’s a very small part of the overall sentence, so I do not take that into account. In fact, I will take the global approach when considering the proper sentence. So, in effect, the sentence for the herbal cannabis and resin would be so small that it would be absorbed by the sentence finally decided.

Now, for the heroin and cocaine, in Lau Tak Ming the recommended sentence for trafficking in between 10 to 50 grammes is 5 to 8 years. Here, it is 24.54 grammes, so I would determine that the proper starting point would be somewhere around 6 years’ starting point. Then enhance it by 1 year for being a Form 8 holder and another 6 months to take into account the aggravating features in this case because the packaging, the drugs that were openly displayed in the room, different drugs, easy packaging, would therefore making it easy to sell is the mixture of drugs which would make certain drugs more potent in the case, I would enhance it by a further 6 months.

So, in relation to the heroin and cocaine, I would say 7½ years’ starting point. As far as the ‘Ice’ is concerned, in Tam Yi Chun [2014] 3 HKLRD 691 where it says up to 10 grammes would be somewhere in the region of 3 to 7 years’ starting point, the methamphetamine is in the region of 6.54 grammes.

Then we have another drug which is not often seen, but it is 10 tablets containing 1.23 grammes of chloroethcathinone and according to medical report which Mr Cheung has shown me, which the prosecution had obtained from a Dr Ho, describing chloroethcathinone as a synthetic cathinone, most commonly known as bath salt. It is quoting from paragraph 6 of his report. It is a human-made stimulant chemically related to cathinone. Cathinone can be found in the khat plant and the leaves are often chewed for mild stimulant effect.

Now, synthetic cathinone, according to Dr Ho, are chemically similar to amphetamine and methamphetamine, as well as cocaine and ecstasy. It is commonly sold in powder, pill or capsule form. Now this is, according to Dr Ho in paragraph 7, is part of a group of drugs that are called new psychoactive substances or NPS. They are unregulated, mind-altering substances.

Now, in paragraph 8, Dr Ho opined that much is unknown about how synthetic cathinone can affect the human brain, but it is believed that it can produce effect, amongst other things, of alertness, euphoria, etc. And adverse effects could increase heart rate and blood pressure, kidney failure, delirium, paranoia, hallucination, etc, and it may be addictive.

So, in effect, I would put it together with the methamphetamine which I have mentioned, thus 1.23 added to 6.54 would give us 7.77 grammes. Again, it would be around the 5 to 6 years’ starting point. So taking 6 years as a starting point, adding 1 year for the enhancement for being a Form 8 holder and 6 months for the other aggravating factors I have enunciated, it would give us a starting point of about 7½ years.

There is ketamine and ecstasy. Again, it’s about 70.31 grammes and the recommended tariff for trafficking in between 50 to 300 grammes would be 6 to 9 years. Again, it would give us a starting point of about 7½ years. So normally, as Miss Crebbin correctly noted, ‘Ice’ would be the most potent of all the drugs which has been discovered.

However, the quantity of ‘Ice’ is much smaller than the quantity of heroin and cocaine found. So taking into account the cocaine and heroin, if one converts, as is recommended for a combined approach, all the drugs found into heroin and cocaine would give us about 101.39 grammes and therefore under the Lau Tak Ming guidelines would be, for 50 to 200 grammes, would merit a sentence of about 8 to 12 years after trial.

So, for this 101.39 grammes, I would consider a starting point of 10 years’ imprisonment to be appropriate. Adding to that the enhancement of 1 year and the half a year for the other aggravating features, it would be 11½ years. Then I would consider the reduction for the plea and the other mitigating factors which I had mentioned which had been considered earlier on this morning, that I would give a reduction of 37 per cent.

Following the case of Stephanie Lo [2018] HKCA 421 at paragraph 50, as the Court of Appeal cited in the case of Stephanie Lo, there is no specific or uniform discount really as far as this sort of case is concerned. Each case has to be considered on its own merit. Then there is the -- I’m sorry, it’s actually paragraph 48 where the Court of Appeal had said it would merit a -- the discount range should be 33.3 per cent to 40 per cent, and Miss Crebbin has also agreed that that would be the range.

In the case of Kilima Abbas [2018] HKCA 602 in 2018, which was after Stephanie Lo’s case, Macrae VP in that case had elucidated further what was said in Stephanie Lo’s case, at paragraph 83 and 84 as pointed out by Mr Cheung. It is clear that the Court of Appeal considered that although the assistance at the time of sentencing may not have come to much fruition, nevertheless, one has to give encouragement to suspects or defendants to provide information which may be valuable for operational intelligence reasons and in the fullness of time may perhaps lead somewhere.

So, for that, it is appropriate therefore that I, in sentencing, give 37 per cent, I consider to be appropriate in the circumstances. Now, so in reducing it by 37 per cent, from 11½ years that would give us 7 years and 1 month.

Now, Father Wotherspoon’s letter had indicated that the defendant is one of 10 who had indicated that there was this person who is supposedly the drug lord and that this information had been supplied and he had requested that all 10 persons be tried together because of this, but it was not done and I can see why it was not done.

In any event, it is hard to in this matter that one can actually weigh to a fine degree of certainty how much the assistance of the defendant is. Because as I have -- the assistance which Father Wotherspoon noted in his letter to this court has actually been taken into account in my 37 per cent. So I would give a token reduction of one month. So, in relation to the 2nd count, I would send the defendant to prison for 7 years.

Now, in considering the totality, Miss Crebbin is right that had the defendant been arrested earlier, the drugs in the 1st count would have been found together with the drugs in the room. It was on the same day, he was just coming out of the room, so I consider that it is proper therefore to make both sentences concurrent. So the defendant goes to prison for 7 years.