HKSAR v. ISLAM AZHARUL

CACC 98/2019

[2020] HKCA 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2019

(ON APPEAL FROM DCCC NO 891 OF 2018)

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R E A S O N S     F O R     J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  With leave granted by Macrae VP on 10 October 2019, the appellant applied to appeal his sentence of 5 years’ imprisonment, imposed on him by HH Judge Josiah Lam (the judge) on 12 March 2019, following his plea of guilty to a single charge of trafficking in dangerous drugs, namely 24.20 grammes of a solid containing 14.30 grammes of cocaine, 46.50 grammes of cannabis in herbal form, 279.39 grammes of cannabis resin, and 36 tablets and one tablet fragment containing 7.56 grammes of 3, 4-methylenedioxymethamphetamine (commonly known as “Ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  At the conclusion of the hearing, we allowed the appeal, set aside the sentence and substituted it with a sentence of 4 years and 8 months’ imprisonment.  We said we would hand down our reasons for doing so in due course and these are our reasons.

3.  In his judgment granting leave, Macrae VP addressed the appellant’s complaint about his sentence.  We agreed with the reasoning and observations of Macrae VP, and do not propose to repeat them, although we will briefly explain how the sentence should have been approached and why we substituted it with the one we imposed. 

4.  The facts as agreed by the appellant when he pleaded guilty can be briefly stated as follows. 

5.  In the evening of 28 May 2018, the appellant, a non-refoulement claimant and Form 8 recognizance holder from Bangladesh, was intercepted by the police when he came out of his room in a guesthouse in Tsim Sha Tsui.  Upon a search of the shoulder bag he was carrying, the dangerous drugs which formed the subject matter of the charge were found, contained in over 90 small bags and packets, as well as a knife containing traces of cocaine and Ecstasy and an electronic scale.  He also had on him $1,800 cash.  He had rented the room in the guesthouse from 12 May to 1 June 2018 at a rate of $240 per day. 

6.  The estimated street value of all the dangerous drugs seized was just over $73,000. 

7.  Even though a body check of the appellant proved positive for amphetamines and cocaine, he did not submit that some of the dangerous drugs were for his own consumption.  He admitted that he possessed the dangerous drugs for the purpose of trafficking.

8.  In sentencing the appellant, the judge explained that he considered that trafficking in more than one kind of dangerous drugs at the same time was an aggravating factor.  In respect of the four different drug components in the charge, the judge stipulated a starting point of 5 years and 3 months’ imprisonment for the cocaine,[1] and 3 years and 6 months’ imprisonment for the Ecstasy,[2] pursuant to the relevant guidelines.  Since there were no guidelines for trafficking in herbal cannabis, the judge adopted a starting point of 3 months’ imprisonment for the total quantity of cannabis resin and herbal cannabis.  He then adopted a notional sentence after trial of 7½ years’ imprisonment for the charge as a whole before granting the appellant a one-third discount for his plea, resulting in a sentence of 5 years’ imprisonment. 

9.  The grounds of appeal aver that the sentence was manifestly excessive because the judge failed adequately to consider the totality of sentence in determining the appropriate notional sentence after trial, and failed to adopt the combined approach in calculating the total sentence, resulting in the 7.56 grammes of Ecstasy effectively receiving a higher sentence than if it had been cocaine, which was a more potent drug. 

10.  Mr John Marray, for the appellant, submits that if one adopts the “combined approach” to sentencing for multiple dangerous drugs, the overall starting point for the four quantities of drugs included in the charge should have been in the region of 5½ years’ imprisonment.[3]  However, this does not factor in the cannabis and hence an overall starting point in the region of 5 years and 9 months’ imprisonment is, in our view, the correct one.

11.  Nevertheless, as rightly pointed out by Mr Anthony Chau, counsel for the respondent, the notional sentence does not take into account three aggravating features that are present in the case. 

12.  The first aggravating feature is that the appellant was not a mere courier or storer of the drugs to which the sentencing guidelines are primarily directed.  He submitted that the appellant played a role far greater than that of a mere courier which warranted a further enhancement of the notional sentence.  He pointed out that the appellant, a non-refoulement claimant, had rented a room for 20 days at a total cost of $4,800 and had on him $1,800 cash when he was arrested.  The appellant was found with over 90 bags and packets of drugs together with a knife with traces of cocaine and Ecstasy and an electronic scale.  Mr Chau contended that the appellant was actively taking this consignment of dangerous drugs onto the streets for dissemination to members of the public.

13.  Mr Marray argued that it is not uncommon in this type of offence to which the relevant guidelines apply for the offender to be found with a number of bags containing the drugs in question. 

14.  We observe, however, that the facts in this case reveal that the appellant was heavily involved in the packaging and dissemination of the dangerous drugs and as a consequence this heightened his culpability or aggravated his offending.  We consider that an enhancement of 6 months’ imprisonment would be appropriate for this factor, although we point out that this is a matter that could have easily been taken into account when determining the starting point that should be adopted.  As a matter of general principle, a starting point is based on the gravity of the criminal conduct and the responsibility for it by the offender.

15.  The second aggravating feature is the multiplicity of drugs.[4] There were four different kinds of drugs involved in the present case, which is a factor deserving of an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”[5]  The appellant was trafficking in both hard and soft drugs, and in our view, this would also warrant an enhancement of 6 months’ imprisonment.[6] 

16.  The third aggravating feature is the fact that the appellant was a Form 8 recognizance holder at the time of the offence,[7] and in our view, this would warrant an enhancement of 9 months’ imprisonment.

17.  The enhancements for the three aggravating factors amount, therefore, to 21 months.  It would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate.  Accordingly, in order to arrive at a just and effective total enhancement, we consider that in the circumstances 15 months’ imprisonment would be appropriate.

18.  Taking the total enhancement for the aggravating factors into account, this will result in a notional sentence after trial of 7 years’ imprisonment.  Even though the judge did not delineate these factors in his reasons for sentence, he may have had them in mind when he adopted a notional sentence after trial of 7½ years’ imprisonment. 

19.  As the appellant entered a timely plea of guilty, he is entitled to a one-third reduction to his notional sentence of 7 years, which results in a final sentence of 4 years and 8 months’ imprisonment. 

20.  This case is a useful reminder of the importance for a sentencing court in following the discipline of taking the necessary steps when determining a just and appropriate sentence to be imposed upon an offender.  In the case of a single offence, this usually involves in its basic form the sentencing court first adopting a starting point based on the blameworthiness of the offender and the harm caused by the offence.  Secondly, the sentencing court should list the aggravating factors, explaining which factors have or have not been taken into account and specifying the amount of enhancement given for the factors that have been taken into account.  Thirdly, the sentencing court should list the mitigating factors, explaining which factors have or have not been taken into account and specifying the amount of reduction given for the factors that have been taken into account.  Having specified the enhancements given for the aggravating factors, it is important for the sentencing court to ensure that the aggregation of the enhancements does not result in an oppressive and overloaded sentence, and by the application of the totality principle this will require determining an appropriate effective total of the enhancements.

Conclusion

21.  For these reasons, we allowed the appeal.  We set aside the sentence of the previous term of imprisonment, and in substitution sentenced the appellant to 4 years and 8 months’ imprisonment.