HKSAR v. MD SHAJU

DCCC 12/2018

[2018] HKDC 763

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 12 OF 2018

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REASONS FOR SENTENCE

1.  The defendant, a Form 8 holder from Bangladesh, pleads guilty to two charges of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant.

Charge 1

3.  In summary at around 1:07 a.m. on 2 September 2017 the police intercepted the defendant near the junction of Hollywood Road and Aberdeen Street in Sheung Wan. 

4.  The police found inside the defendant’s bag one plastic bag containing ten tablets containing 4 milligrammes of clonazepam; two plastic bags and a plastic box containing a total of forty-eight tablets containing 10.21 grammes of 3, 4-methylenedioxymethamphetamine (ecstasy) and ten empty transparent resealable plastic bags.

5.  The defendant was released on police bail. 

Charge 2

6.  At around 8:10 p.m. on 6 October 2017 the defendant was seen by the police looking around at the junction of Eastern Street and Second Street in Sai Ying Pun. When the police intercepted the defendant, the defendant dropped a plastic bag into the nearby bushes.

7.  Inside the plastic bag the police found five plastic bags containing 3.91 grammes of a solid containing 3.13 grammes of ketamine; three plastic bags containing 2.15 grammes of a solid containing 1.78 grammes of cocaine; and one plastic bag containing two tablets containing a total of 0.39 gramme of ecstasy. 

8.  The police also found one plastic bag containing 5.75 grammes of herbal cannabis in the defendant’s underpants. 

9.  The defendant was also found in possession of $8,928.50 and one mobile phone. 

Mitigation

10.  I have carefully considered everything said on behalf of the defendant by Mr Parry together with the defendant’s mitigation letter.

Guidelines

11.  In Secretary for Justice v Hii Siew Cheng[2]the Court of Appeal laid down guidelines for trafficking in ketamine and ecstasy.  Where the narcotic content is up to 1 gramme sentence is within the discretion of the court; where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years and where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years. 

12.  The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.

13.  In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing cannabis resin[5]. Where the quantity of cannabis is under 2000 grammes sentence is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

Starting points

Charge 1

14.  I am satisfied the correct starting point after trial for 10.21 grammes of ecstasy is 4 years’ imprisonment.   I am further satisfied that the small quantity of clonazepam does not add to the defendant’s culpability.

Charge 2

15.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 3.13 grammes of ketamine and 0.39 gramme of ecstasy would be about 2 years and 6 months’ imprisonment and for 1.78 grammes of cocaine would also be about 2 years and 6 months’ imprisonment.  Although the amount of cannabis is small, 5.75 grammes of herbal cannabis, the offence of trafficking in drugs is a serious offence for which immediate imprisonment is appropriate[6].   I am satisfied a starting point of 3 months’ imprisonment is appropriate for trafficking in 5.75 grammes of herbal cannabis.

16.  Applying what has been referred to as the “absurdity test” a starting point (excluding the cannabis) of 5 years’ imprisonment is clearly excessive for if the ketamine and ecstasy were cocaine the starting point based on quantity alone would likely be about 3 years and 7 months’ imprisonment. 

17.  I agree that the “combined” approach to sentence is appropriate[7]. Adopting the starting point of 2 years and 6 months’ imprisonment for trafficking in 1.78 grammes of cocaine, I enhance the starting point by 6 months to 3 years’ imprisonment to reflect the fact that the defendant was also trafficking in ketamine, ecstasy and herbal cannabis.

Own use

18.  When the defendant was first arrested he told the police the ecstasy found on him was ‘medicine’ for his headache.  Mr Parry tells the court that only eight to ten of the tablets were for the defendant’s own consumption and that the term ‘medicine’ was the way he described the ecstasy.       

19.  Mr Parry informs the court that the defendant started taking drugs after the death of his father.  I note in his letter the defendant refers to the mental stress he suffered after the death of his father and one of his sisters which led to him to take drugs. 

20.  Although there is no other confirmation that the defendant was a drug abuser at the time of his arrest I am prepared to accept eight to ten of the tablets may have been for his own consumption.

21.  No claim for own use is made in respect of the drugs found on the second arrest.

22.  In deciding how much weight should be attached to the fact some of the ecstasy may have been for the defendant’s own consumption, I have considered the decision in HKSAR v Wong Suet Hau[8], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[9]. 

23.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[10].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant portion of the drugs were for own consumption.

24.  Mr Parry asks for a 10% discount.  This in my view would result in a starting point almost the same as if the defendant was only charged with trafficking in thirty-eight to forty tablets.  

25.  I am not satisfied that a significant portion was for the defendant’s own consumption.  Taking into account the defendant was arrested on the street in the early hours of the morning; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied the starting point should be reduced by 3 months to 3 years and 9 months’ imprisonment, which is equivalent to a discount of just over 6%. 

Aggravating features

26.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  Trafficking in drugs on the streets of Hong Kong clearly affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.

27.  In HKSAR v Ali Saif the Court of Appeal said that for a serious offence of trafficking in drugs before the District Court or High Court they would not expect an enhancement for this factor to be less than 6 months’ imprisonment. 

28.  I am satisfied both charges are serious offences of trafficking and that the starting point on each charge is to be enhanced by 6 months’ to 4 years and 3 months’ and 3 years and 6 months’ imprisonment respectively.

29.  The commission of offences on bail is also an aggravating feature of sentence.  I further enhance the starting point on charge 2 by 3 months’ to 3 years and 9 months’ imprisonment. 

30.  Giving the defendant full credit for his pleas of guilty reduces the sentences to 2 years and 10 months’ and 2 years and 6 months’ imprisonment respectively.

Totality

31.  I am satisfied a total sentence of 4 years imprisonment properly reflects the defendant’s criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences, including the total quantity of drugs and that the defendant was trafficking in four different drugs[11].

32.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 10 months’ imprisonment; and

Charge 2 – 2 years and 6 months’ imprisonment with 1 year and 2 months consecutive and 1 year and 4 months concurrent to charge 1.

The total sentence to be served by the defendant is 4 years’ imprisonment.