HKSAR v. MOHAMMED ZAMIR

CACC 270/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 270 OF 2015

(ON APPEAL FROM HCCC NO. 93 OF 2015)

________________________

________________________

____________________

J U D G M E N T
____________________

Hon Macrae JA (giving the Judgment of the Court):

1. The applicant seeks leave to appeal against a sentence of 7 years and 4 months’ imprisonment imposed on him in the High Court on 4 August 2015 by Deputy Judge Campbell-Moffat SC following his conviction on his plea of guilty to a single count of unlawfully trafficking in a dangerous drug, namely 129 grammes of a crystalline solid containing 73.4 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts of the case

2. The applicant was observed by police officers in the early evening of 26 August 2014 in Wan Chai Park, Wan Chai acting suspiciously.  Having been approached by another man, with whom he was seen to be “whispering”, the other man left the park.  After looking around for a period of time, the applicant likewise left the park holding a plastic bag in his left hand.  He was intercepted by the officers.

3. On being searched, the plastic bag in the applicant’s possession was found to contain one zip bag containing a further plastic bag containing a piece of tissue paper wrapping yet another plastic bag.  Inside this latter plastic bag, the “Ice”, the subject matter of the indictment, was found.  The applicant was duly arrested.

4. Having been escorted to the police station and formally cautioned with the assistance of an interpreter, the applicant answered, “I don’t know this bag. I held that bag unknowingly. I didn’t know what was inside the bag at all. This is all I would like to say.”  In a subsequent video-recorded interview, the applicant maintained that he had no knowledge of the contents of the plastic bag, which had been given to him by a man who was unknown to him; he further said that he was addicted to heroin and “Ice”.

5. The retail value of the total quantity of dangerous drug found in the applicant’s possession was $54,954.

6. On pleading guilty to the offence, the applicant accepted that he possessed the said dangerous drug for the purpose of trafficking.

Mitigation

7. It was submitted on the applicant’s behalf at trial that he had pleaded guilty at the first available opportunity once legal advice had been given to him, after which the court was immediately informed of his intended plea.

8. The applicant was a 24-year-old Indian national with a clear criminal record in Hong Kong.  He was a married man with a 3-year-old son in India, and had been educated to the equivalent of Primary 6 level.  He was a torture claimant in Hong Kong, as was his brother.

9. Given that the quantity of narcotic fell just over the threshold of the 70 – 300 grammes bracket, for which a starting point for sentence of 11 to 15 years’ imprisonment was appropriate, the court was urged by the applicant’s counsel to adopt a starting point at the lowest end of the relevant guideline.  There was some suggestion during mitigation that 4 or 5 grammes of the whole quantity would have been retained by the applicant for his own consumption, but counsel accepted that it would not have substantially affected the sentence.

Reasons for Sentence

10. For the quantity of 73.4 grammes of narcotic, the judge adopted a starting point of 11 years’ imprisonment in accordance with the recent guidelines set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  According the applicant a full one-third discount, the judge reduced the sentence to 7 years and 4 months’ imprisonment.

Grounds of appeal against sentence

11. In his Notice of appeal, the applicant merely asserted that the sentence was manifestly excessive.  He has further submitted a handwritten letter to the Court dated 5 January 2015, setting out his home-made grounds of appeal, which he has elaborated upon this morning. Essentially he says that he is the only one to provide for his family, and that he wishes to return to his country as soon as possible to look after them.  He also refers to a sentence passed in another case at first instance, in which he says the defendant received a lower sentence for a higher quantity of “Ice”[1].

Respondent’s submissions

12. Mr David Chan, on behalf of the respondent, submits that the starting point of 11 years’ imprisonment was appropriate within the applicable guidelines in HKSAR v Tam Yi Chun.  Accordingly, the sentence cannot be said to be either manifestly excessive or wrong in principle.

Consideration

13. The quantity of narcotic for sentencing purposes fell within the range of 11 to 15 years’ imprisonment in accordance with the guidelines set out in the recent case of HKSAR v Tam Yi Chun. Any suggestion that a small quantity of the overall amount was to be retained by the applicant for his own consumption could not have affected the appropriateness of the starting point, as the applicant’s counsel at trial realistically accepted.

14. There were no real circumstances of mitigation beyond the fact of the plea of guilty for which the applicant was entitled to, and received, a one-third discount, making the resulting sentence one of 7 years and 4 months’ imprisonment.  As has been said countless times before, unfortunate personal circumstances cannot amount to any significant mitigation for crimes of such seriousness.

15. As for the sentence in the case of HKSAR v Shahid [2], referred to by the applicant in his home-made grounds of appeal, it will be remembered that the facts and circumstances of each case will differ.  References to other sentences passed at first instance on different facts, in different circumstances, at different times are not helpful.  In particular, the offence in HKSAR v Shahid was committed before the new guidelines in “Ice” cases came into being on 9 June 2014, whereas the applicant’s offence was committed after those guidelines came into effect.  The previous guidelines governing “Ice” set out in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, under which the defendant in HKSAR v Shahid fell to be dealt, prescribed a starting point of 10 to 14 years’ imprisonment for trafficking in between 70 and 300 grammes of “Ice”, whereas for the same quantities under the new guidelines in HKSAR v Tam Yi Chun, by which the sentencing court in the present case was bound, a sentence of 11 to 15 years’ imprisonment is prescribed.  It is not a fruitful exercise, therefore, to compare sentences passed under different sentencing regimes.

Conclusion

16. For the above reasons, the sentence passed was entirely correct and the application for leave to appeal against sentence must therefore be refused.

[1] HKSAR v Shahid HCCC No 442/2014

[2] HCCC No 442/2014