HKSAR v. HASSAN HARIS AND ANOTHER

DCCC 411/2022

[2023] HKDC 1063

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2022

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to Charge 1 trafficking in a dangerous drug[1], namely 8.80 grammes of a solid containing 7.45 grammes of ketamine and Charge 2 resisting police officers in the execution of their duties[2]. Charge 3 against D1[3] is left in court file.

2.  D2 pleaded not guilty to Charge 1.  D2 was willing to plead guilty to a charge of simple possession, but prosecution refused.  After trial, D2 was found not guilty to Charge 1, but was convicted for the charge of possession of a dangerous drug[4].

3.  Before sentence, I obtained a background report for D1 and Drug Addiction Treatment Centre Suitability report for D2.

FACTS OF D1

4.  At about 1850 hours on 30 December 2021, whilst police officers were conducting an anti-crime patrol, PC16177 (PW1) and PC16748 (PW2) observed a black vehicle bearing number plate XC7742 (“Vehicle”) parked in the lay-by area outside Chung Bo House, Tin Chung Court, Tin Shui Wai.  The engine of the Vehicle was switched on and D2 was sitting in the driver’s seat.  D1 was sitting in the front passenger seat looking around furtively.

5.  PW1 and PW2 approached the Vehicle.  PC10496 (PW3) arrived thereafter. D1 appeared to be nervous and locked the Vehicle.  Subsequently, when PW1 managed to open the nearside front door of the Vehicle, D1 immediately ran out of the Vehicle.  PW1 shouted, “Police, don’t move”.  D1 put up a fierce struggle whilst PW1 and PW2 controlled D1’s arms, and PW3 also tried to subdue D1 onto the ground. 

6.  During the course of the struggle, PW1 spotted that a red and white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a black mobile phone (“Black Mobile Phone”) in D1’s right hand fell onto the ground.  D1 then pushed the Cigarette Box and the Mobile Phone into a drain hole whilst he was struggling on the ground.

7.  Thereafter, whilst continuing to struggle, D1 suddenly opened his mouth, posing as if he was about to bite PW1’s left forearm.  PW1 warned D1 several times that OC Foam would be used but in vain.  Eventually PW1 sprayed OC foam against D1’s face.  Subsequently, PW1, PW2 and PW3 managed to subdue and handcuff D1.

8.  At about 1905 hours, PW1 opened the drain cover and seized the Cigarette Box and the Black Mobile Phone from the drain.  PW1 opened the Cigarette Box in front of D1 and found 27 transparent re-sealable plastic bags therein, each plastic bag containing some white powder suspected to be ketamine (“27 Bags”).

9.  PW1 also searched D1 and seized from his bag HK$6,273 in cash, a white mobile phone (“White Mobile Phone”).   

10.  D1 was arrested for “trafficking in a dangerous drug” by PW1.  Under caution, D1 stated in Punti that there were twenty something “K” (“K仔”) inside the Cigarette Box.  He bought them for $7,000 and wanted to sell them for $9,000 to make a profit.  He also asked for a chance because his son had just been born.

11.  During a subsequent video recorded cautioned interview taken by DPC18958 on 31 December 2021 at 2111 hours to 2148 hours, D1 stated in English, inter alia, that:-

(a) The dangerous drug was “K” (“K仔”) for self-consumption and denied trafficking in dangerous drugs.

(b) D1 and D2 purchased 26 packets [of dangerous drugs] for self-consumption for $9,300. D1 and D2 each paid $4,650. The 26 packets were to be split equally between them. The seller gave them 1 packet for free.

(c) The seller threw the Cigarette Box and the White Mobile Phone into the Vehicle without collecting money from D1 and D2 and went away.

(d) D1 and D2 usually took the dangerous drug every 2 to 3 days. They purchased 27 packets for a month’s consumption.

(e) D1 was a new user of the dangerous drugs. He took it 4 or 5 days ago due to depression.

(f) D1 opened the Cigarette Box to check the dangerous drugs.

12.  The Government Chemist’s Certificate certified that the 27 Bags were 27 plastic bags containing a total of 8.80 grammes of a solid containing 7.45 grammes of ketamine.  The street value of 8.80 grammes of ketamine was HK$4,190 in December 2021.

13.  D2 was the registered owner of the Vehicle at the material time.

FACTS OF D2

14.  Facts of the D2 were already spelt out in the Reasons for Verdict.  I do not repeat them herein.  In short, D2 was found inside the Vehicle with knowledge of the drugs.  The court found he did not possess the same for the purpose of trafficking.

D1’S MITIGATION

15.  Prior to the commencement of the trial on 5 July 2023, the solicitors for D1 wrote to the District Court indicating that D1 would plead guilty to Charges 1 & 2. 

D1’S BACKGROUND

16.  D1 was born in Hong Kong on 12 July 2002 and is now 21 years old.  At the time of the offence, he was aged 19.  He is a permanent resident here.  He has a clear record.

17.  His mother died in January 2013 from kidney failure when he was only 11 years old.  He lives with his father, his elder brother and his elder sister and his partner, with whom he has two children, one aged two and one just one week old.

18.  His partner is now a full-time carer of the children and prior to that she worked at a restaurant.  D1 is working as a security guard earning HK$16,000 per month.

19.  D1 foolishly got himself into trafficking as he was driven to earning more money after his partner had a child.  He was not academically accomplished as he was a school drop out after completing Secondary-3 after his mother’s death and was not able to earn enough to maintain his new family.  The silver lining is that he had just started on this venture and was busted in what is believed to be a sting operation.

20.  At the time of the commission of the offence, he was just 19 years of age, and somewhat naive and was easily enticed by some unscrupulous characters that got him into this illicit trade.  He says his role was just a gofer/courier and not the main trafficker.  It is more of a case of him being unduly used and abused as in this case as a runner for others.

21.  He is remorseful and wish to complete his sentence and re-unite with his young family and promises not to re-offend again ever.

THE TARIFF & SENTENCING

Charge 1 - Trafficking in Ketamine (7.45 g)

22.  Quantity of ketamine involved in this case is 8.80 g of a solid containing 7.45g of ketamine.  According to the established sentencing guidelines[5], a quantity of 1g-10g will attract a sentence of 2-4 years.

23.  The quantity of 7.45 g will attract on a mathematical basis a starting point of about 3 years 5 months and 20 days.

24.  The court is urged to adopt a more lenient starting point due to his young age of 19 when he committed the offence and the fact that this is his first conviction, albeit a serious one.

25.  A sentence closer to 3 years may be appropriate in the circumstances.

Charge 2 - Resisting police officers in the execution of their duties

26.  Under the Police Force Ordinance, Cap 232 (S 63), this will attract on a summary conviction a fine at Level-2 (HK$5,000) and a prison sentence of not exceeding 6 months’ imprisonment.  Under S 23 of the Summary Offences Ordinance, Cap 228, the same offence attracts even a lesser fine.

27.  The customary sentence at the Magistracy for a first offender is usually a small fine or a binding over for a first offender, if the officer sustained no injuries.

28.  Regarding the facts of the case, D1 submitted:-

(i) According to the statement of PW1, when D1 locked the car door, the window was half open, and PW1 was able to stick his hand into the car and unlock the car door. When the officer did so, D1 did not impede, resist, or prevent the officer from unlocking the door. It does appear the locking of the door was meaningless with the passenger side window being left half-open and thus the resistance is somewhat otiose and somewhat strange.

(ii) When D1 ran out of the car, PW1, PW2 & PW3 then manhandled him and he lost his balance and he fell on top of the street drain.

(iii) D1 says he never intended to bite D1 and neither did he do so, he was just struggling with the three officers who were very physical with him. To prevent himself from being harmed, he made that stupid gesture, as his eyes were also sprayed with chemicals by one of the officers that made him very uncomfortable and wanted that to stop.

(iv) He lost his balance and fell on the drain and the items he held fell on the ground on top of the drain.

(v) The act of pushing the cigarette packet and the phone into the drain was subject of Charge 3 which has now been withdrawn and should be ignored. In any event, the drain was empty and the items pushed into it were easily recovered.

29.  The acts of resisting were mild and posed no prolonged period of inconvenience to the officers.  None of the officers were injured, or prevented from doing their duty eventually as the officers outnumbered the two defendants at the scene.

30.  The criminality of resisting is on the lower end of the scale and the court is urged to adopt a lower starting point.

31.  There is no tariff for this type of offence, and as an indication, in sentencing a defendant who was involved in a violent struggle with an officer causing him injuries of swelling, abrasion and tenderness to various parts of the officer’s body, a sentence of 1 month after plea was meted out.[6]

32.  As D1 has not offered his plea at the first instance, but only prior to the commencement of his trial, he is not entitled to a full one-third discount but only to a lesser discount of up to about 25% under these circumstances.[7]

33.  Further, Mr Pannu submitted that since D2 was found guilty of possession of dangerous drugs only for self-use, the court should consider a discount for self-consumption is appropriate for D1, as they jointly possessed the dangerous drugs in question.

D2’S MITIGATION

34.  D2 was found after trial, whereupon the defence agreed the entire prosecution case, not guilty of one charge of trafficking in a dangerous drug, namely 8.80 grammes of a solid containing 7.45 grammes of ketamine. No live witnesses were called to court to testify.

35.  D2 admitted the charge of simple possession of the drugs.  The prosecution refused, erroneously with respect, to accept D2’s plea to simple possession.  Thereby, a trial had to be conducted to determine whether D2 possessed the drugs in question for trafficking.

36.  The facts of the case had all been agreed and contained into Admitted Facts.  In essence, the defence relied upon the Video Recorded Interview of D2 taken by police officer DPC18958 and the lack of other incriminating evidence vis a vis trafficking.

37.  It is respectfully submitted there is no latent risk in this case vis a vis D2, as it is vital to note that the amount of drugs involved is only 7.45 grammes of ketamine.  Not a large quantity.  As to latent risk the quantity or amount of drugs is important.  In this case the amount/quantity is not large.

38.  Further, it is submitted there is little or no evidence of latent risk in this instant case, it is important to note that the defendant had a clear record at the material time.

39.  All along D2 admitted knowledge of the drugs.  He along with D1 had purchased them for his own consumption.

40.  D2 never admitted nor suggested there was to be any sharing or latent risk of the drugs he had bought and to which he stated clearly were only for his own consumption.

41.  In this regard, it is vital to note that the court found that D2’s alleged usage is within the average dosage shared by two people.

42.  Further, it is important to note there was no evidence to show D2 was unable to finance the drugs, which were for his own consumption.  The packaging was consistent with trafficking as well as bulk buying.  There was no evidence the defendants were seen travelling around with the drugs after they got them.  There was no other items or drug paraphernalia like scales or tools found on D2.

43.  It is to be in addition noted, D2 was a new drug user.

44.  It is respectfully submitted, there is no latent risk in this instant case, this is simply because of the relatively small quantity of drug involved in this case, no risk that some of the drug, finding its way into the hands of the public.

DISCOUNT

45.  It is further submitted, that D2 should get full credit for pleading guilty to simple possession.

46.  In addition, it is vital to note the Prosecution refused to accept the plea.

47.  A trial could have been avoided if the Prosecution had accepted the lesser plea.

48.  In addition, the defence agreed the whole of the Prosecution case by way of Admitted Facts.  No witnesses needed to be called by the prosecution.  Thereby, saving the court valuable time.

49.  D2 had at the time of the offence a clear record.

50.  It is submitted in law, if the offer of an accused to plead guilty to a lesser offence at the outset of the trial and is rejected by the Prosecution and he is nonetheless convicted after trial of that offence, it is submitted he is entitled to credit for his willingness to plead guilty Ab Initio. (and see: Attorney General v Lee Kui Man [1997] HKLRD 576 and 579).

51.  It is further submitted, it is vital for the court to note that D2 never challenged the facts in this case.  Indeed, it is submitted D2 agreed as part of the prosecution case his VRI as voluntarily given.

52.  D2 told the officer in the VRI that he went to get or buy drugs he was never selling.  D2 repeatedly stated he was never trafficking nor trading the fairly small quantity of drugs in question.

BACKGROUND

53.  D2 comes from a good family.  He is the second son with a number of sisters.  D2 has now mended his way and is now working hard for his family.  D2 spent 222 days in custody already. 

D1’S SENTENCE

Charge 1

54.  In Secretary for Justice v Hii Siew Cheng[8], the starting point for trafficking 1 to 10 grammes of ketamine is 2 to 4 years’ imprisonment.  According to strict mathematics, the appropriate starting point for 7.45 grammes would be 41 months and 20 days.  D1 indicated he would plead guilty before trial but after fixing of trial date, he is entitled to 25% discount.  The sentence is reduced to 31 months and 7 days.   

55.  D1 submitted that since the court found the drugs were jointly possessed with D2, and D2 possessed the drugs for self-consumption, the court should consider giving a self-consumption discount to D1.  In this submission, I have the following observations:

(i) The basis for D1’s conviction is based on the Re-Amended Summary of Facts for D1. It is not based on the facts found in the trial of D2. In the Re-Amended Summary of Facts, D1 admitted he possessed the dangerous drugs for the purpose of trafficking.

(ii) According to the Reasons for Verdict of D2, it is found that D2 might possess the drugs for his own consumption. There is never a finding of self-consumption on the part of D1. Nor D1 ever claimed self-consumption.

(iii) In HKSAR v Wong Suet Hau and another[9], the Court of Appeal clearly stated that “social” or “non-commercial” trafficking case “should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking.”[10]

(iv) D1 admitted that he possessed the drugs for unlawful trafficking. Part of the drugs D1 possessed were for D2’s consumption. At most, D1 can claim he trafficked part of the drugs for D2. This amount to social trafficking, and is not a basis for reduction in sentence.

(v) Therefore, I will not give any discount to D1 for D2’s self-consumption.

56.  D1 said he now has a young family and has a significant role to his cohabitant and sons.  However, D1 committed these offences after his first son was born.  He should have considered his young family before the commission of these offences.  This does not amount to mitigation.

57.  I noticed D1 is 21 at the moment, and was 19 at the time of offences. He had a clear record.  I will give him a 3 months and 7 days discount for his young age and clear record.  There is no other reason for me to reduce the sentence further.  Therefore, for Charge 1, I sentence D1 to 28 months’ imprisonment. 

Charge 2

58.  Maximum sentence for the offence of resisting police officers in the execution of their duties on a summary conviction is a fine at Level-2 and imprisonment for 6 months.  There is no tariff for this type of case.

59.  D1 locked the vehicle door after the police approached, and immediately ran out of the car after PW1 opened the door.  D1 put up a fierce struggle when polices tried to control and subdue him.  D1 opened his mouth posing as if he was about to bite PW1’s forearm, but he did not do so.  It is clear that D1 was attempted to flee.

60.  I accept that the act of resisting did not cause any harm to any officers and was not for a prolonged period.  It is obvious D1 committed this offence as he was scared at the young age of 19.

61.  Considering the above, I adopt a starting point of 8 weeks’ imprisonment.  Given his guilty plea, I reduce the sentence to 6 weeks’ imprisonment. 

TOTALITY

62.  Consider the totality of offences, given his young age at the time of offence, I order that both sentence to run concurrently.  Therefore, a total sentence of 28 months’ imprisonment.

D2’S SENTENCE

63.  D2 is convicted of one charge of possession of a dangerous drug.  According to the case of HKSAR v Mok Cho Tik[11], the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.  I have borne in mind the principles laid down in HKSAR v Wan Sheung Sum[12]when determining the proper starting point. 

64.  Defence submitted HKSAR v Tang Kin Chung Harry[13], suggesting a one month sentence be sufficient.  However, that case involves only 0.06 gramme of powder containing cocaine, very different from the present case.

65.  The amount of drugs is 7.45 grammes of ketamine.  I consider a starting point of 12 months appropriate.

66.  Mr Allan submitted there is no latent risk, as the amount of drugs is only 7.45 grammes of ketamine and D2 has a clear record. 

67.  First, 7.45 grammes is not a small amount for simple possession.  In the Reasons for Verdict, I found the drugs can last for 1-2 months.  The drugs were already packed in 27 resealable bags, easy for distribution.  D2 has a clear record and no drug addiction history.  According to his DATC report, D2 had never tried dangerous drugs before.  Given D2 is not a drug user, the risk for D2 to decide not to use the drug, but instead the drugs found its way to public, is relatively high. 

68.  I noted in the DACT report, D2 stated that the drugs were for profit.  Mr Allan submitted that there was a misunderstanding.

69.  In any event, even if I do not consider what was said in the DATC report, I am of the view the latent risk is high.  Therefore, I will increase the starting point by 3 months.

70.  D2 only indicated his plea on the first day of trial.  According to HKSR v Ngo Van Nam[14], if the plea of guilty is tendered at the first day of trial, subject to the judge’s overriding discretion in sentencing, the appropriate discount for sentence is 20% of that taken as the starting point.

71.  D2 relied on Lee Kui Man to say that D2 is entitled for full credit for his willingness to plead guilty.  However, in Lee Kui Man, the Court of Appeal only indicated as the respondent was prepared to plead, a discount was given.  At the time, a one-third discount was given.  However, the case was decided before Ngo Van Nam, the amount of discount should be considered in light of the latest authority.

72.  According to Ngo Van Nam, the amount of discount is determined by when defendant indicated his plea.  D2 only indicated his plea on the first day of trial.  Even if the prosecution does not accept his offer, D2 could have indicated his intention to plea at an earlier stage.  In any event, the court is now sentencing D2 as if he pleaded guilty to the charge of possession of a dangerous drug.  His time of plea would be the time he indicated his offer to the court and prosecution, not affected by prosecution’s ultimate decision on whether to accept his offer or not.  As D2 only indicated his plea on the first day of trial, following Ngo Van Nam, he is entitled to 20% discount. 

73.  Mr Allan urged the court to give more discount because D2 had admitted all the facts in trial.  However, I have already given D2 discount as if he pleaded guilty without trial, I will not give him further discount.  Therefore, I am of the view that he is only entitled to 20% discount.  The sentence is reduced to 12 months’ imprisonment.

74.  D2 had a clear record at the time of offence, I give him 1 month discount.  There are no other mitigating factors for the court to consider.  Therefore, I impose a sentence of 11 months’ imprisonment.