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DCCC 938/2020
[2021] HKDC 520
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 938 OF 2020
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| Present: |
Mr Daniel Chan, counsel on fiat, for HKSAR |
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Mr Richard David Donald, instructed by B Manek & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Trafficking in a dangerous drug (販運危險藥物) |
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[2] Trafficking in dangerous drugs (販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant is convicted of two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to Summary of Facts.
Facts
2. Around 4:28 pm on 9 March 2020, the defendant, a Form 8 holder, used a key to enter a flat at Mezzanine Floor, No 339 Tai Nam Street, Sham Shui Po. Police officers rushed forward and kept the flat’s door open.
3. The defendant was intercepted and searched. He was holding keys in his left hand and 3 Marlboro cigarette boxes in his other hand. 4 pieces of suspected cannabis resin (one piece of which was in fact a combined one with two pieces) (E1-5) were found in one of these cigarette boxes while the other two cigarette boxes were empty. 3 mobile phones and $360 cash were found in his front trouser pocket.
4. The flat was then searched on the strength of a search warrant and there were 2 rooms inside the flat.
5. Room A was a bedroom. Inside Room A, 2 mobile phones and a cup containing a cigarette butt was found.
6. Room B’s door was locked. Police officers opened it with one of the keys seized from the defendant’s hand and in Room B, on the ground near to the room’s door, there were:-
(a) 2 resealable plastic bags containing suspected cannabis resin (E6-7);
(b) a piece of suspected cannabis resin (E8);
(c) 2 silver disc-shaped objects wrapping suspected cannabis resin (E9-10);
(d) an electronic balance with traces of suspected cannabis resin (E11);
(e) an electronic balance (E12) inside a carton box;
(f) a resealable plastic bag containing 83 small empty resealable bags;
(g) 3 rolls of plastic wrap;
(h) 32 empty cigarette boxes, 31 of which were of Marlboro brand;
(i) 2 pairs of scissors;
(j) a knife with traces of suspected cannabis resin (E13); and
(k) a cutter.
7. In Room B, on the ground near to the room’s door, there was a red-white-blue bag and 4 cartons of boxes. Inside the red-white-blue bag, there were 61 disc-shaped cloth decorations with dolls attached. In the 4 carton boxes, there were a total of 84 plastic wraps wrapped cloth decorations (E14-97), each of which contained a disk-shaped object that wrapped suspected cannabis resin under layers of cardboard, tin foil, and duct tape.
8. Government chemists subsequently confirmed:-
(a) E1-5 contained a total of 28.57 grammes of cannabis resin;
(b) E6-7 contained a total of 14.71 grammes of opium;
(c) E8-10 contained a total of 256 grammes of cannabis resin;
(d) E11 contained 0.06 gramme of cannabis resin;
(e) E13 contained 0.06 gramme of cannabis resin; and
(f) E14-97 contained a total of 8,182.4 grammes of cannabis resin.
9. Estimated street value of the above cannabis resin was $668,900.11.
10. In the subsequent video-recorded interview conducted in the presence of an interpreter, the defendant said under caution, inter alia, that he has the habit of smoking cigarette but no habit of taking drugs and that he initially said all 9 keys seized from him belonged to him but later he said 3 of the keys belonged to his friend. And then after that he said that actually he only owned 3 of the keys and the rest of the keys belonged to his friend.
11. The defendant’s left thumb print and right thumb print were found on the carton box that contained E12. Forensic scientist subsequently found human DNA on the above cigarette butt and DNA was confirmed to be originated from the defendant.
12. At all material times, the defendant was in possession of E1-5 (Charge 1), E6-11 and E13-97 (Charge 2) for the purpose of unlawful trafficking.
Criminal record
13. The defendant has one previous conviction, not similar.
Mitigation
14. The defendant was born in Pakistan. He is 37 years old, single. Both parents have died and his 10 siblings are all residing in Pakistan. He used to be a scrap material employee before he came to Hong Kong.
15. His non-refoulement claim was refused and a judicial review hearing of that refusal is pending. He now relies on the International Social Service for subsidy. It was said that the same was insufficient for his survival.
16. Defence counsel said the defendant is deeply remorseful for what he has done, getting involved in drug trafficking, and is ashamed for his actions. He committed the offence as he was in desperate need of money to survive. He now pleads guilty at the earliest opportunity.
17. It was submitted that cannabis resin is not the most serious of dangerous drugs.
18. It is considered that the defendant is a Form 8 holder and that the same would amount to an aggravating factor in sentencing.
19. It is also considered that the authority for trafficking in cannabis resin is the case of Attorney General v Tuen Shui Ming and Another[1], which laid down the guideline for trafficking in over 6,000 grammes and less than 9,000 grammes, the sentencing guideline is between 36 to 48 months of imprisonment.
20. Pursuant to the guideline, it is submitted that the sentencing starting point in this case should be less than 48 months’ imprisonment but the same would be further enhanced by reason of the aggravating factor mentioned, and that the defendant should be entitled to his full one-third sentencing discount by reason of his guilty plea.
Discussion
21. Trafficking in dangerous drugs is a very serious offence and a person on conviction upon indictment of this offence is liable to life imprisonment and to a fine of 5 million.
1st charge
22. This court has fully considered all mitigation submitted by defence counsel but the present offence, as said earlier, are very serious, and personal background of the defendant is seldom a valid mitigating factor nor the fact that he committed the offence for money a valid mitigating factor.
23. Following the tariff in the Tuen Shui Ming case, 28.57 grammes of cannabis resin would attract a sentencing starting point of 3 months’ imprisonment.
24. However, the defendant is a Form 8 holder. It has been said in numerous cases that the defendant has abused the hospitality extended to him by authorities and people of Hong Kong while he seeks asylum here by committing this serious crime, which affect Hong Kong’s reputation for order and security of which he seeks to avail himself. This is an aggravating feature in sentencing, by reason of the relatively small amount of drugs involved, the court will enhance the sentencing starting point by 2 months’ imprisonment[2], bringing the sentencing starting point to 6 months’ imprisonment.
25. The most valid mitigating factor as submitted by defence counsel is the defendant’s own guilty plea, for which he is entitled a full one-third sentencing discount.
26. Accordingly, for the 1st charge, the defendant is sentenced to 4 months’ imprisonment.
2nd charge
27. This charge concerns 8,438.52 grammes of cannabis resin. The sentencing starting point is 45 months’ imprisonment. This charge also concerns 14.71 grammes of opium. The tariff for the offence of possession of opium for the purpose of unlawful trafficking is in the case of R v Lau Yiu Nam[3]. However, on the issue of the 14.71 grammes of opium and the fact that two types of drugs involved under this charge which by itself amounts to an aggravating factor, on this occasion the court would not enhance the sentencing starting point under this charge.
28. The same, however, is enhanced by 6 months by reason that the defendant is a Form 8 holder, bringing the sentencing starting point to 51 months’ imprisonment[4].
29. Again, the defendant is entitled to full one-third sentencing discount by reason of his guilty plea. He is therefore sentenced to 34 months’ imprisonment for this charge.
30. Now, coming to the totality principle, considering the overall culpability of the defendant in this case, the court will order that sentence in the 1st charge is to run wholly concurrent to the sentence in the 2nd charge. Accordingly, the defendant is sentenced to a total of 34 months’ imprisonment in this case.
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