HKSAR v. MD TARIK

HCMA 648/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 648 OF 2014

(ON APPEAL FROM KCCC 516/2014)

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REASONS FOR JUDGMENT

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Background

1. The appellant was convicted after trial on one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was sentenced on 23 September 2014 to 20 months’ imprisonment.  His appeal against both conviction and sentence has been dismissed.  I now give the reasons.

Prosecution Case 

2. The appellant was legally represented in the proceedings below.  Substantial part of the Prosecution case was admitted by the appellant.  In short, police officers entered the offence location, which was a residential address, to execute a search warrant.  Upon entering the premises, the appellant was seen sitting on the floor holding in his right hand a resealable plastic bag containing a pellet.  The appellant immediately put the plastic bag into a bucket placed in front of him when he saw the police.

3. Found inside the bucket were:

(1) eight plastic bags containing 41.41 grammes of herbal cannabis;

(2) one plastic bag and four plastic wrappings containing 100.38 grammes of cannabis resin; and

(3) one plastic bag containing 0.25 gramme of cocaine.

4. Also found inside the bucket were one electronic scale, some plastic wrappings, some empty resealable plastic bags, two lighters, one pair of scissors and two notebooks.

5. The appellant was found to have on him cash of $16,590, two mobile phones and the key to the premises.

Defence Case

6. The appellant admitted to possessing the dangerous drugs found in the bucket but maintained that they were for his own consumption.  The cash found was part of the $18,000 given to him by his friend, DW2, for safekeeping.

7. DW2 gave evidence and claimed that he was a businessman trading in garments.  It was his practice to leave all his Hong Kong currency with the appellant before he left Hong Kong in order to avoid getting into trouble with the Indian Customs.

Verdict of the magistrate

8. The magistrate rejected the explanation given by the appellant.  He noted that the appellant was inconsistent in respect of his level of drug addiction.  The appellant’s claim about his use of the plastic wrappings for food was considered implausible.  The magistrate also found the story offered by the appellant and DW2 regarding the cash to be concocted.

9. Meanwhile, the magistrate found that the only inference that he could draw from the evidence was that the appellant possessed the dangerous drugs for the purpose of trafficking.  There were three different types of drugs seized; and they were placed together with various paraphernalia which the magistrate found were used for packaging the drugs for trafficking.  The amount of cash found, in view of the fact that the appellant was a torture claimant who relied on subsidies from ISS and his friends for a living, was large.

10. The magistrate found accordingly that all elements of the charge were proved beyond reasonable doubt.

Appeal against Conviction

11. The only issue that the magistrate had to decide in this case was whether the drugs were possessed by the appellant solely for his own consumption or for the purpose of trafficking.

12. As correctly described by the magistrate, much of the Prosecution case was admitted pursuant to section 65C of the Criminal Procedure Ordnance, Cap 221.  Observation made by the police was not challenged.

13. The video recorded interview of the appellant was admitted into evidence at trial.  The voluntariness and accuracy of the contents were not in dispute.  The magistrate directed himself correctly when dealing with the same, which contained mixed statements.

14. As can be seen in the Statement of Findings, in rejecting the appellant’s account, the magistrate had considered thoroughly his, as well as DW2’s, evidence.  I agree that nothing illogical or improper can be found when it comes to how the magistrate treated the appellant’s evidence.

15. The magistrate directed himself correctly on the burden of proof.  He explicitly reminded himself that it was the Prosecution’s duty to prove the charge throughout even though the appellant’s evidence was rejected.

16. There were three different types of drugs seized.  The drugs were placed together in a bucket with, inter alia, an electronic scale, plastic wrappings and empty resealable plastic bags.  These are items typically used in connection with drug trafficking, as opposed to personal drug consumption.

17. When considering the large amount of Hong Kong currency found, the magistrate took into consideration the fact that the appellant was a torture claimant and hence was not allowed to work in Hong Kong.  I agree that the magistrate was entitled to form the view that the cash was indicative of trafficking.

18. I agree that the Statement of Findings does not reveal anything which suggests that the appellant’s conviction was unsafe in any way.

19. The appeal against conviction should accordingly be dismissed.

The appellant’s background and mitigation

20. The appellant is aged 29.  He came to Hong Kong in 2008 and was educated to secondary level in India.  He was a torture claimant.  He was unemployed as he was not allowed to work in Hong Kong.

21. The appellant has one previous conviction for possession of Part I Poison in 2009.  He was fined.

22. In mitigation, the appellant asked for leniency to reflect the fact that only a small amount of drugs was found.

Reasons for Sentence

23. In sentencing the appellant, the magistrate referred himself to the respective tariffs for the different types of drugs found, namely, AG v Tuen Shui Ming [1995] 2 HKC 798 for cannabis resin; HKSAR v Chor Lui [2001] 3 HKLRD 95 for herbal cannabis; and R v Lau Tak‑ming [1990] 2 HKLR 370 for cocaine (which shares the same tariff as heroin).

24. In his Statement of Findings, the magistrate took the view that the individual approach was more preferable in sentencing the appellant for trafficking in a variety of drugs which were disparate in quantity and potency.

25. Despite the lowest tariff sentence of 2 to 5 years’ imprisonment for the trafficking of cocaine, the magistrate, referring to the case of HKSAR v Ko Kin Hang, HCMA 823/2012 (Judgment dated 3/05/13), adopted a lower starting point of 18 months’ imprisonment in view of the fact that there was only a small amount of cocaine found.

26. The magistrate enhanced the starting point of 18 months by 2 months to reflect the trafficking of cannabis resin and herbal cannabis, making it a total of 20 months’ imprisonment.

27. There was no mitigating factor which warranted a reduction of sentence and the appellant was so sentenced.

Appeal against Sentence

28. The appellant has not advanced any grounds in support of his appeal against sentence, save that it is too severe.

29. I find that the magistrate has referred himself correctly to the relevant tariffs.

30. Further, the magistrate cannot be criticised for opting for the individual approach.

31. In the present case, the cocaine and cannabis seized were disparate in quantity as well as in potency.  The magistrate did not err in adopting the individual approach.  The absurdity of simply adding up the individual starting points did not arise here, as the overall starting point was arrived at by merely adjusting the 18 months’ imprisonment starting point upwards by 2 months.  The ultimate sentence of 20 months’ imprisonment was not at variance with the totality principle.  The sentence passed was not manifestly excessive.

32. I agree that in the circumstances, the sentence imposed by the magistrate on the appellant was neither wrong in principle nor manifestly excessive.  Accordingly, the appellant’s appeal against sentence is also dismissed.