HKSAR v. ABDOU ISSAKA

DCCC 1018/2018

[2019] HKDC 553

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1018 OF 2018

-----------------------------

-----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

INTRODUCTION

1.  The defendant is convicted upon his own guilty plea of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap. 134.  The dangerous drugs involved were 1.83 grammes of methamphetamine and 46.59 grammes of chloroethcathinone.

FACTS

2.  The police intercepted the defendant at about 5:20 pm on 26 February 2018 outside Room 730 in Flat E4, 7/F, Block E, Chung King Mansions, Nos.36 to 44 Nathan Road (the “Room”) when the defendant was leaving the Room which was rented by the defendant.

3.  The police then gained access into the Room. Upon search of the Room, the following items were found placed inside a plastic box on the top of a bedside open cabinet:-

•   1 transparent re-sealable plastic bag containing suspected “ICE” which was subsequently found to be 26.3 grammes of a crystalline solid containing 1.83 grammes of methamphetamine; and

•   10 transparent re-sealable plastic bags containing 497 tablets and one tablet fragment of suspected dangerous drug which were subsequently found to contain 46.59 grammes of chloroethcathinone.

4.  The defendant was arrested for the offence of trafficking in dangerous drugs.  At the time of arrest, the defendant was in possession of inter alia a card key giving access to the Room and two mobile phones.

5.  In a video-recorded interview under caution conducted on the evening of 26 February 2018, the defendant said inter alia that:-

•   he used to live in Kam Tin, Yuen Long alone;

•   he moved to the guesthouse as he became ill;

•   he did not know who paid the rent for the Room; and

•   he was unemployed and was living on the subsidy of ISS.

6.  The estimated street value of 26.3 grammes of a crystalline solid containing 1.83 grammes of methamphetamine is HK$13,518, and the estimated street value of 497 tablets and one tablet fragment of 46.59 grammes of chloroethcathinone is approximately HK$38,346.

7.  The defendant is a Form 8 recognizance holder in Hong Kong.

BACKGROUND

8.  Prior to the commission of the present offence, the defendant had a clear record.  He was born in 1978 and is now 41 years old.  He completed high school education.  He came from the Republic of Niger and subsequently moved to Nigeria to join his mother.  He went to China in July 2015 via some African countries.  In August 2015, he lawfully came to Hong Kong via Macau. Subsequently, he was arrested for overstaying.  He then applied for refugee status.

MITIGATION

9.  Mr Shaun Kelly, counsel for the defendant, helpfully submitted his written Mitigation Submissions dated 12 April 2019.

10.  In respect of one of the dangerous drugs involved in the present case, namely chloroethcathinone, Mr Kelly referred me to Dr Tse Man Li’s expert report dated 15 August 2018 in which it was stated inter alia that chloroethcathinone bears similarity to MDMA in terms of user reported effect and psychoactive doses.  Mr Kelly referred me to Secretary for Justice v Hii Siew Cheng[1] and submitted that following a strictly mathematical approach, 46.59 grammes of chloroethcathinone would have attracted a sentence of about 5 years and 10 months’ imprisonment.

11.  Mr Kelly referred me to HKSAR v Tam Yi Chun[2] and submitted that following a strictly mathematical approach, 1.83 grammes of methamphetamine would have attracted a sentence of about 3 years and 4 months’ imprisonment.

12.  Mr Kelly also referred me to HKSAR v Chan Yuk Leong[3] in which the Court of Appeal identified three means of cross-checking the appropriate sentence to be imposed, namely the “absurdity test”, the “conversion test” and the “ratio test”.

SENTENCE

13.  This case involved two kinds of dangerous drugs.  I am of the view and Mr Kelly agrees that in imposing sentence, the “combined approach” is to be preferred: HKSAR v Yip Wai Yin and Anor[4].

14.  For 1.83 grammes of methamphetamine, applying Tam Yi Chun I consider a starting point of 3 years’ imprisonment appropriate.  For 46.59 grammes of chloroethcathinone, on the basis that the effect and psychoactive doses of chloroethcathinone are similar to MDMA and applying Hii Siew Cheng, I consider a starting point of 5½ years’ imprisonment appropriate.

15.  On the basis that ICE is the most serious/potent drug in the present case and applying the “absurdity test”, the whole quantity of the drugs seized was 48.42 grammes which would have attracted a starting point of 9½ years’ imprisonment.

16.  Applying the “conversion test”, 46.59 grammes of chloroethcathinone would have attracted 5½ years’ imprisonment which would have resulted from trafficking in about 6.9 grammes of methamphetamine. If one were to add the converted quantity of 6.9 grammes to the 1.83 grammes of methamphetamine, one would arrive at a total of 8.73 grammes of methamphetamine which would have attracted a starting point of 6 years and 3 months’ imprisonment.

17.  Similar starting point of 6 years and 3 months’ imprisonment would have arrived at if the “ratio test” had been applied.

18.  In light of the aforesaid, I consider it appropriate to adopt an overall starting point of 6 years and 3 months’ imprisonment for the present case.

19.  The defendant being a Form 8 recognizance holder at the material time is an aggravating feature justifying an enhancement of sentence for 6 months: HKSAR v Ali Saif[5].  That brings the sentence to one of 6 years and 9 months’ imprisonment.

20.  I will give the defendant one-third discount on sentence in light of his timely indication of guilty plea. That brings his sentence to 4 years and 6 months’ imprisonment.

21.  There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 4 years and 6 months’ imprisonment.