HKSAR v. WILLAN MUSTAPHA

DCCC 353/2020

[2020] HKDC 785

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Facts

2.  About 9:37 p.m. on 6 March 2020, a police officer in plain clothes intercepted the defendant outside No. 52 Wyndham Street for enquiries when he found the defendant acting suspiciously.  As there were a lot of pedestrians in that location, the officer took the defendant to the Central Police Services Centre in Hollywood Road for a body search.  The officer found inside the defendant’s underpants a transparent re-sealable plastic bag containing 13 small transparent re-sealable plastic bags containing a total of 9.38 grammes of a solid containing 3.11 grammes of cocaine.  In addition, the defendant had with him cash HK$19,000, an Octopus card and one mobile phone.

3.  The officer then arrested the defendant.  Under caution, the defendant remained silent.

4.  The defendant subsequently took part in two video-recorded interviews.  Under caution, he admitted that the dangerous drugs in question belonged to him.  He purchased 4 grammes of cocaine from an unknown Pakistani male in Tsim Sha Tsui on the day before his arrest.  He and his friends then mixed the drugs with other white solids to inflate the quantity.  He put the drugs in his underpants and intended to share the drugs with his friends in Tuen Mun.

5.  The estimated retail value of the drugs in question was about HK$10,618 at the time of the offence.

6.  The defendant admitted that he had unlawfully trafficked in the dangerous drugs in question.

Criminal record

7.  The defendant has 4 previous criminal convictions, 3 of them related to dangerous drugs.  In February 2015 the defendant was fined HK$2,000 for possession of dangerous drugs.  In June 2015, he was sentenced to 8 months’ imprisonment for trafficking in dangerous drugs.  In August 2016, he was sentenced to 12 months’ imprisonment for possession of dangerous drugs.

8.  The defendant was last sentenced to 14 days’ imprisonment on 9 March 2020 for the offence of criminal damage.  Mr McNamara, Counsel for the defendant, contends that this conviction of criminal damage should not be counted as one of the defendant’s previous convictions because the offence was committed by the defendant while he was remanded in police station after his arrest for the present case.  In my view, this Court is entitled to know that the defendant has been sentenced on 4 occasions prior to today, but whether this conviction of criminal damage, which was unrelated to drugs, should be counted as one of his previous convictions has no effect on the sentence to be imposed.

Personal and family background

9.  The defendant is 38 years old.  He was born on 22 May 1982 in Gambia where he completed his high school education.  He is a Muslim.  He came to Hong Kong in 2014 on a tourist visa.  All his family members are still living in Gambia.  His father is in his 80’s and mother in her 60’s.  He is the youngest of 4 children.  His elder sister has recently passed away.  He was married in Gambia, but has already separated from his wife.  He has no child.

10.  After his arrival in Hong Kong, the defendant filed his non-refoulement claim in January 2017. Since then, he has been allowed to stay as a Form 8 recognizance holder.  His non-refoulement claim was refused by the Immigration Department in February 2016, and his appeal was dismissed by the Torture Claims Appeal Board in March 2017.  He filed an application for judicial review of the decision of the Board in September 2018, and the application is still going on.

11.  The defendant lives in Sai Ying Pun with his intended fiancée who is an Indonesian.  He is not allowed to take up employment.  He receives social welfare payment in the sum of HK$1,500 each month.

Mitigation

12.  According to Mr McNamara, the defendant abused cocaine occasionally and cannabis more frequently.  As the defendant received only HK$1,500 a month, he supplemented his income by buying small quantity of cocaine and cutting it with paracetamol.  On the night in question, the defendant was on his way to a party in Tuen Mun to meet his friends.  He intended to sell some of the drugs to his friends and use some himself.  The defendant maintains that the HK$19,000 found on him belonged to his fiancée and was to go towards a wedding party.

13.  Mr McNamara submits that since the defendant only trafficked in 3.11 grammes of cocaine, the starting point of his sentence should be at the lower end of the sentencing tariff.  He further submits that since part of the cocaine would have been used by the defendant, a small discount should be applied for this factor.  The defendant is also entitled to the full one third discount for his early plea. The defendant in his mitigation letter also expresses his full remorse and his intention to reform.  Mr McNamara asks for a sentence as lenient as possible.

Reasons for sentence

14.  Trafficking in dangerous drugs has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of dangerous drugs being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option should not be employed.

15.  In the present case, despite the defendant’s guilty plea and the mitigation advanced on his behalf, there is no justification for not imposing a prison sentence.  In fact, Mr McNamara only asks for a term of imprisonment as lenient as possible.

16.  As far as the quantum of the sentence is concerned, the Court of Appeal decided in Attorney General v Pedro Nel Rojas[1] that the sentencing tariff for trafficking in heroin hydrochloride as set out in The Queen v Lau Tak Ming[2] was applicable to trafficking in cocaine.  According to these authorities, the appropriate sentence for trafficking up to 10 grammes of cocaine is between 2 and 5 years.

17.  In the present case, the defendant trafficked in 3.11 grammes of cocaine.  Purely as a matter of mathematic calculation, the appropriate starting point of the sentence is imprisonment for 35.196 months, rounded down to 35 months.

18.  The defendant was a Form 8 recognizance holder at the time of the offence.  He betrayed the trust placed in him by the people of Hong Kong, and that betrayal has impacted significantly on the lives of the people and the reputation of this city.  This constitutes an aggravating feature of the offence.  Other Form 8 recognizance holders must also be firmly discouraged from engaging in serious crimes when it may take years to process their non-refoulement claims.

19.  In HKSAR v Ali Saif [3], while the Court of Appeal took the view that it was neither prudent nor possible to issue guidelines for enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases and that it was best to leave the matter to the discretion of the sentencing judge, it also said that it would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.

20.  In HKSAR v Butt Muhammad Gulzar[4], the Court of Appeal also made it clear that it would be quite wrong to trivialize trafficking in dangerous drugs by Form 8 recognizance holders just because only small quantities were involved.

21.  In light of these authorities, I am of the view that the starting point should be adjusted upward by 6 months to reflect the fact that the defendant was a Form 8 recognizance holder at the time of the offence.

22.  In addition, the defendant has 3 previous convictions relating to drug offences, two of them resulted in terms of imprisonment, not to mention that one of them was for trafficking in dangerous drugs.  Despite these prison sentences, he was not deterred from committing further drug offences.  This constitutes another aggravating feature of this offence[5]. The starting point should be adjusted upward by another 3 months.

23.  Mr McNamara had stated in his written mitigation that the starting point should be lowered on the ground that part of the drugs was for the defendant’s own consumption.  The Court of Appeal stated in HKSAR v Chow Chun Sang[6] that the starting point might be reduced by 10 to 25% if part of the drugs was for the defendant’s own use.

24.  With a view to proving that the defendant was a drug abuser, Mr McNamara produced a letter dated 25 August 2020 from the Correctional Services Department to prove that a urine specimen taken from the defendant upon his admission into Lai Chi Kok Reception Centre after his arrest was tested positive for cannabis.

25.  It is however noted that the urine specimen taken from the defendant was tested negative for cocaine.  The drugs in question were cocaine.  The urine test tends to show that the defendant had not abused cocaine prior to his arrest.  Mr McNamara submits that the defendant was a frequent abuser of cannabis, but he abused cocaine only occasionally.  Mr McNamara further says that one of the defendant’s previous convictions was for possession of cocaine.

26.  Even if the defendant was an occasional abuser of cocaine, it is clear that only in cases where a “significant proportion” of the dangerous drugs was to be used by the defendant himself will result in a reduction of the sentence: HKSAR v Wong Suet Hau[7], HKSAR v Cheung Wai Man[8].

27.  Mr McNamara concedes that he cannot substantiate the mitigation that a significant proportion of the drugs in question was to be used by the defendant.  He has taken instructions from the defendant who chooses not to provide evidence in this respect.

28.  I am of the view that there is no evidence to show that a significant proportion of the drugs in question was for the defendant’s own consumption.  For this reason, the defendant’s sentence will not be lowered on this ground.

29.  For the reasons stated above, the defendant will serve a term of imprisonment for 44 months unless there are mitigating factors that operate to reduce the sentence.

30.  The defendant pleads guilty timely. He is entitled to the full one third discount.  The sentence is therefore lowered to 29.33 months.

31.  I have considered the mitigation entered on behalf of the defendant carefully.  In my view, there is no other effective mitigating factor that may reduce the sentence further.

32.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 29 months and 10 days.