HKSAR v. JAVAD ASAD

DCCC 920/2024

[2025] HKDC 1010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 920 OF 2024

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REASONS FOR SENTENCE

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1.  On his own plea and admission of the facts, D was found guilty of two charges of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  Around 1640 hours on 6 November 2023, police officers in an anti-drug operation intercepted D when they saw him acting in a furtive manner in the lift lobby of 4/F, Man Yuen Building, 9-16 Man Wai Street, Yau Ma Tei, Kowloon.

3.  D was searched and a plastic bag containing 8 black plastic packets containing 16.7 g of herbal cannabis was found in the left front pocket of his trousers.  All the plastic packets had the word “KING” and the image of a crown.  Cash of HK$620, one mobile phone and a set of 4 keys including a key for access to the iron gate of Flat No 9, 4/F, Man Yuen Building (the Flat)  and a key for access to Room E inside the Flat was also found on D.

4.  Around 1604 hours, D was arrested for “trafficking in a dangerous drug”.

5.  On the strength of a search warrant, the police searched Room E and found: (i)  238 black plastic packets containing a total of 490.8 g of herbal cannabis.  All the packets had the word “KING” and the image of a crown; (ii)  2 transparent resealable plastic bags containing a total of 500.1 g of herbal cannabis; and (iii)  3 transparent resealable plastic bags containing a total of 2,172 g of cannabis resin.

6.  The police also found in Flat E: (i)  one plastic bag containing multiple empty plastic bags with the word “KING” and the image of a crown; (ii)  2 transparent resealable plastic bags containing multiple empty transparent plastic bags; (iii)  one transparent resealable plastic bag containing multiple empty black plastic bags; (iv)  one sealing machine; (v)  one electronic scale; (vi)  one plastic container: and (vii)  one pair of scissors.

7.  Around 1642 hours D was arrested for “trafficking in a dangerous drug”.

8.  The estimated street value of the drugs seized was around HK$277,889.60.

9.  In a video-recorded interview, D confirmed under caution that the set of keys and the plastic bag containing 16.7 g of herbal cannabis were seized from him.

D’s Background

10.  D has 4 previous convictions - 3 convictions for possession of dangerous drugs and one conviction for trafficking in dangerous drugs.  D is in breach of a suspended sentence of 4 weeks’ imprisonment suspended for 24 months imposed on him on 15 September 2023 in respect of an offence of possession of dangerous drugs.

11.  D is 35 years old.  He was born in Pakistan and arrived in Hong Kong in 2016.  He is a Form 8 Recognizance holder whose application for refugee status is still being processed.

Mitigation

12.  Regarding the facts of the case, defence counsel Mr Duncan Percy explained that D was caught by the police while leaving the building in question carrying 8 packets of herbal cannabis.  D did not reside in Room E.  He had been given by a “friend” the keys to the room where he was told to package drugs as directed and then deliver those packages as directed. For his role he was rewarded HK$400 per day.  He had been working there for 2 to 3 days before he was caught by the police.  The money found on him was part of his reward.

13.  Mr Percy suggested following the six-step approach to sentencing for offences of trafficking in dangerous drugs set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

14.  Referring to the sentencing guidelines for trafficking in herbal cannabis and cannabis resin set out in HKSAR v Nguyen Thang Loi & Anor [2023] 1 HKLRD 1329, Mr Percy pointed out the quantity involved in the 1^st Charge would come within the sentencing range in the first band of under 2000 g, attracting a sentence of up to 16 months’ imprisonment.  Mr Percy suggested a starting point in terms of weeks rather than months for this charge.

15.  The starting point for 2^nd Charge should be based on the combined quantity of herbal cannabis and cannabis resin, ie 3,162.9 g, to which the band of over 3000 grammes applies, with a sentencing range of 24 to 36 months.

16.  As the two offences were committed on the same date and occasion, Mr Percy invited the court to treat them as arising out of a single incident and impose wholly concurrent sentences for both offences.

17.  Mr Percy set out 3 “potential aggravating factors”: (a)  D’s one previous conviction for similar trafficking in cannabis; (b)  D is a Form 8 holder; and (c)  D is in breach of a suspended sentence passed in September 2023 which was about 1½ months before his commission of the present offences.

18.  A one-third discount for D’s timely plea should be given.

Sentencing considerations

19.  The guidelines in Nguyen Thang Loi put cannabis resin and herbal cannabis on an equal footing and the same guidelines apply to both forms of cannabis[1]. Therefore, in dealing with the 2^nd Charge, I shall regard this offence as trafficking in a total of 3,162.9 g of cannabis.  Sentencing band (c)  of “Over 3000 grammes – 24 to 36 months” applies to this charge.  Applying this quantity to the guideline arithmetically would result in a sentence of 25 months.

20.  The quantity of herbal cannabis involved in the 1^st Charge is 16.7 g.  Sentencing band (a)  of “Under 2000 grammes – up to 16 months” applies. An arithmetical calculation will result in a sentence which is far too low to reflect the criminality involved.  A starting point of 1 1/2 months’ imprisonment for trafficking in this quantity of cannabis would seem appropriate.

21.  The drugs involved in both charges were in D’s possession on the same day but at different locations.  In such a situation, the sentencing approach, according to the Court of Appeal in HKSAR v Wan Lau Mei CACC 389/2013, is that “The judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another.”[2]

22.  The total amount of cannabis involved in both charges is 3,179.6 g.  The sentence resulting from an arithmetical application of this quantity to the relevant sentencing band is the same as the sentence for the 2^nd Charge, ie 25 months’ imprisonment.

23.  I shall now deal with D’s role and culpability.  From the packaging of the drugs found in Room E and the presence in that room of a multiplicity of empty plastic bags, an electronic scale, a pair of scissors, a plastic container and a sealing machine, and from the fact that D was intercepted in the lift lobby outside the Flat carrying with him herbal cannabis which was contained in packets having the same design as some of the bags found inside Room E, it is obvious that D was involved in the packaging and distribution of the drugs.

24.  About the culpability of a person playing such a role, the Court of Appeal in HKSAR v Islam Azharul [2020] HKCA 29 said, “…the appellant was not a mere courier or storer of the drugs to which the sentencing guidelines are primarily directed.”[3]  The Court later said, “…the facts of 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.”[4]

25.  In view of the extent of enhancement made in Islam Azharul for this aggravating feature, an enhancement of 6 months would seem appropriate.

26.  D’s previous drug-related convictions, especially the one in June 2022 for trafficking in dangerous drugs which, according to Mr Percy, were also cannabis, aggravate his culpability.  An enhancement of 3 months would seem right.

27.  His being a Form 8 holder committing offences in Hong Kong is another aggravating factor which warrants an enhancement of at least 6 months[5]. His sentence will be increased by 6 months for this aggravating feature.

28.  The aggregate amount of enhancement for the above 3 aggravating feature would be 15 months.  Taking account of the totality principle in assessing the extent of enhancement for the above three aggravating features, I consider a total enhancement of 11 months to be appropriate.  The 25 months’ starting point for trafficking in the total amount of cannabis in both charges will be increased to a notional sentence after trial of 3 years’ imprisonment.

29.  D’s timely plea will reduce the notional sentence to 2 years’ imprisonment.

30.  The final sentence on each charge is 2 years’ imprisonment. Both sentences are to run concurrently with each other.

31.  I order that D’s suspended sentence of 4 weeks’ imprisonment imposed by the court in KC/2179/22 should be activated in full and should run consecutively to his sentence for the present case.