HKSAR v. DANEYAL MAHMOOD

DCCC 974/2018

[2019] HKDC 519

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 974 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of possession of a dangerous drug (charge 1) and one charge of trafficking in a dangerous drug (charge 2).

SUMMARY OF FACTS

2.  The defendant was intercepted by patrolling Police officers at around 2240 hours on 1 September 2018 outside Ground Floor of No 45 Stanley Street, Central.

3.  A cannabis grinder containing 0.07 g of cannabis in herbal form (exhibit E1) and a plastic bag containing 0.49 g of cannabis in herbal form (exhibit E2) were found from the defendant’s left trouser pocket.

4.  In the subsequent video recorded interview, the defendant claimed that he had bought the cannabis from someone in Chung King Mansion, intending to consume them at a party in Lan Kwai Fong that he was going to that evening.

5.  The said cannabis had an estimated street value of $113.68.

6.  The defendant was taken back to the Police station where a body search was conducted.  From inside the defendant’s underwear, a bag containing 11 plastic bags containing a total of 4.46 g of cocaine (collectively as exhibit E3) were found.  The defendant was also found to have cash of $7,641 on him.  The cocaine had an estimated street value of $8,228.10.

7.  In another video recorded interview, the defendant claimed that he had received the cocaine from a drug dealer for free.  He also said that he had no habit in taking dangerous drugs.

PREVIOUS CONVICTIONS

8.  The defendant is of previously clear record.  He was ordered to be bound over on 5 February 2018 (7 months prior to the present offences) for a period of 12 months with the condition of not committing any criminal offences involving dangerous drugs or Part I poisons.  I am told by Ms Herbert that this court does not have to deal with the defendant’s breach of the binding over order.

MITIGATION

9.  The defendant was 19 at the time of the commission of the offences.  He has since turned 20.  He was born in Hong Kong and lives with his mother and two younger brothers (aged 13 and 15) in Hong Kong, while his father resides in Pakistan.

10.  The defendant works as a casual construction site worker with a fluctuating income.  He earns around $15,000 to $16,000 per month on average.

11.  The defendant has ambition of becoming a professional singer and was in the course of recording an album at the time of the offences.

12.  Letters from the defendant’s parents, former school principal and Islamic Studies teacher wrote in mitigation.  They speak of the defendant’s good nature and seek leniency.

13.  In her very helpful written mitigation, counsel for the defendant Ms Herbert told the court that the defendant “was co-operative with the Police and attempted to assist the prosecution by making an NPS [non-prejudicial statement]”.  Very fairly, Ms Herbert also told the court that, despite the defendant’s best efforts, the Police found the contents of the statement to be of “no investigative value”.

14.  Ms Herbert informed the court that “part of” the cocaine in charge 2 was for the defendant’s self-consumption, to be used at the party that he was going to together with his friends.  Ms Herbert ask for a discount in sentence on this basis.

SENTENCE

Charge 2

15.  Since charge 2 is the more serious offence and its sentence will affect that to be imposed on charge 1, I will deal with this charge first.

16.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is a fine of $5 million and life imprisonment.

17.  The sentencing guidelines and tariff for trafficking in heroin as laid down in R v Lau Tak Ming[1] were held to apply to trafficking in cocaine as well in Attorney General v Pedro Nel Rojas[2].  The band of tariff for trafficking up to 10g of cocaine is that of 2 to 5 years’ imprisonment.

18.  An arithmetical application of the said tariff sentence to 4.46 g of cocaine would lead to a starting point of 40 months’ imprisonment.  This is the starting point I adopt on charge 2.

Assistance to Authorities

19.  The defendant seeks a discount of sentence on the basis of him having made a non-prejudicial statement to the Police.  The contents of the statement was, however, found to be of “no investigative value”.

20.  The general approach to discount granted for assistance can be found in the case of HKSAR v W [2013] 4 HKLRD 369, CACC 10/2011:

“8. It has for long been the approach in this jurisdiction not to accord credit for information which in the event bears no fruit…

11. So, where information provided in fact leads nowhere, the system opens itself to abuse if credit is given merely for the provision of detailed and specific information which in the event bears no fruit. And “fruit” in such a case is not produced by mere identification without the assistance of the accused in actually securing, directly or indirectly, the prosecution and conviction of the person concerned.

12. That must be the general approach…”

21.  There is nothing in Ms Herbert’s submissions that would lead this court to find that such assistance as perceived in the case of W had been rendered by the defendant in the present case.

22.  There will, therefore, be no discount for the information provided by the defendant which is of “no investigative value”.

Self-consumption

23.  The defendant seeks a discount in sentence on the basis that “part of” or “some of” the cocaine in charge 2 was to be for his self-consumption.

24.  In order for a discount to be granted, it must be a “significant proportion” of the drugs that was supposed to be for self-consumption:

“54. Since Wong Suet Hau it is clear that an offender is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by him. If he does not surmount this hurdle then he is not entitled to any discount…” – per McWalters JA in HKSAR v Tsoi Man Chun (蔡文進), CACC 414/2015

25.  Ms Herbert’s written submissions claim only that “part of” or “some of” the cocaine was for the defendant’s self-consumption.  I invited her to make further submissions as to the quantity to be consumed.

26.  Upon taking instructions, Ms Herbert told the court that, in addition to the herbal cannabis, the defendant intended to share the 11 packets of cocaine with 2 of his friends. In other words, around 4 packets were for his self-consumption.  I then informed Ms Herbert that, given the circumstances of the finding of the cocaine and what the defendant had said to the Police about him not having a drug habit, I was minded not to accept the defendant’s assertion.  I then gave time for Ms Herbert to take some instructions, specifically to advise the defendant on whether he would like to enter the witness box to give evidence on this issue.

27.  Upon resumption, Ms Herbert informed the court that the defendant fully understood his rights and elected not to do so.

28.  Despite the defendant’s decision to not give evidence on the matter, I think it is only fair that I consider Ms Herbert’s original submissions about “part of” the drugs being for the defendant’s self-consumption and whether it is credible that a significant proportion was intended for himself in the circumstances.

29.  It is noted that the defendant was only 19 at the time of the commission of the offences and that there is no history of him being a drug addict.  He had never been convicted of any drug related offence.  He said in his video recorded interview that he did not have the habit of taking dangerous drugs.

30.  The cocaine were contained in 11 separate plastic bags and the defendant was found to be in possession of them far from his home in Sau Mau Ping.  There were no paraphernalia for using the cocaine found on the defendant’s person, not even cigarettes or a lighter.

31.  The defendant was working as a casual construction site worker with an unstable income while in possession of $8,228.10’s worth of cocaine.  He claimed that the cocaine were given to him by a drug dealer for free, which is rather unusual.  It is obvious that the defendant did not tell the Police what the full arrangement between himself and the drug dealer was in relation to the cocaine.  It would bother on the absurd to think that the dealer would not require the defendant to give something in return for the drugs.  It is highly unlikely that the defendant would be able to afford the drugs without resorting to trafficking in them.

32.  There was one separate packet of herbal cannabis found in the defendant’s pocket, suggesting it might be for his own consumption while the cocaine, which were for trafficking, were hidden in his underwear.

33.  The facts as they stand do not support the defendant’s assertion that any of the cocaine were for his self-consumption, let alone a significant proportion.

34.  I find, therefore, that there should be no discount given on the basis of self-consumption.

Sentence on charge 2

35.  The defendant is, however, granted the full one-third discount for his timely guilty plea and sentenced to 26 months’ imprisonment on charge 2.

Charge 1

36.  There are no sentencing guidelines for the simple possession of a small amount of herbal cannabis.  Had this 0.56 g of herbal cannabis been the only narcotics found on the defendant, the matter would have been dealt with in the Magistracy and the defendant would likely have received a fine or be put on probation.

37.  Bearing in mind the principle of totality, I find that given the circumstances of the case, the most appropriate way to deal with the defendant on charge 1 is to impose a short custodial sentence and then order it to be served concurrently with the sentence in charge 2.

38.  I adopt a starting point of 15 days, discounting it to 10 days for the defendant’s guilty plea and order the sentence to be served concurrently to the sentence in charge 2.

Final sentence

39.  The final sentence for the defendant is that of 26 months’ imprisonment for the two charges.