HKSAR v. RAHMAN MD MOTALEB

CACC 235/2021

[2023] HKCA 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 235 OF 2021

(ON APPEAL FROM DCCC NO 111 OF 2021)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons of Judgment of the Court):

Introduction

1.  The appellant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 and was sentenced to 46 months’ imprisonment on 6 October 2021 by HH Judge Issac Tam (“the judge”).

2.  On 20 October 2021, the appellant filed a Notice of application for leave to appeal against his sentence.  

3.  At the hearing of his application for leave to appeal against sentence on 6 July 2022, I granted leave, as a Single Judge of the Court of Appeal, and identified 4 issues which are reasonably arguable.  The appellant was further granted a Legal Aid certificate to pursue his appeal.  He was represented by Mr Boyton of counsel in the present appeal.

4.  We allowed the appeal, set aside the original sentence of 46 months and replaced it by 43 months.  We said we would give our reasons later.  This we now do.

The Facts

5.  The appellant, a Form 8 recognizance holder, was stopped and searched by the police at about 5:20 pm in Tsim Sha Tsui.  He was found in possession of 4 plastic bags of herbal cannabis and 7 small plastic bags of ice, which he admitted he was delivering to others.  The drugs, upon analysis, were found to be 23.97 grammes of cannabis in herbal form and 4.57 grammes of a crystalline solid containing 4.49 grammes of methamphetamine hydrochloride with an overall market value of $7,609.50.

Grounds of Appeal and submission

6.  Mr Boyton adopted the four issues identified at the leave hearing as follows:

(i)  Whether the 57.5 months starting point for 4.49 grammes of ice adopted by the judge is correct;

(ii)  Whether the judge erred in adopting the individual approach and adding on 3 months for the herbal cannabis;

(iii)  Whether the enhancement of 8.5 months for the applicant’s Form 8 status is on the high side;

(iv)  Whether the overall starting point of 69 months is manifestly excessive or wrong in principle.

7.  Whilst conceding that 57.5 months is the correct starting point for 4.49 grammes of ice on a purely mathematical calculation, Mr Boyton took issue with the judge adopting 3 months as the starting point for the 23.97 grammes of herbal cannabis.  He submitted that starting point was totally disproportionate to the tariff of 4 months for 2,000 grammes of herbal cannabis laid down in the case of Chor Lui[1].  He further complained that by adopting the individual approach and adding the 3 months on to the 57.5 months, with a further enhancement of 8.5 months for the appellant’s Form 8 status, the judge erred in failing to pay sufficient regard to step 6 in HKSAR v Herry Jane Yusuph[2].  The resultant overall starting point of 69 months was wrong in principle and manifestly excessive.

Respondent’s submission

8.  The respondent was represented by Ms Laura Liu, SPP.  It was submitted that the 57.5 months for the amount of Ice in question was correct and in accordance with the mathematical approach.  She contended that although the aggravating features in Chor Lui were absent in the present case, trafficking in two disparate kinds of drugs was an aggravating feature which justified 3 months as starting point for the herbal cannabis and adding that on to the 57.5 months by an individual approach.  Ms Liu also argued that although the 8.5 months enhancement for the appellant’s Form 8 status could be said to be on the high side, there was no departure from the guideline: HKSAR v Ali Saif [3].  The overall starting point of 69 months and ultimate sentence of 46 months was therefore not excessive.

Discussion

9.  In sentencing trafficking cases, the 6 steps laid down in Herry Jane Yusuph should be followed.  In particular, in step 6, the final stage of the sentencing process, the court emphasized the importance of achieving an ultimate sentence that is not out of proportion to the defendant’s overall criminality, especially when “there is more than one count or charge involved”, or “more than one aggravating feature justifying enhancement of the starting point”.[4]  The appellant in this case was undoubtedly a courier to which the sentencing tariffs apply.

10.  We have no qualm about the 57.5 months for 4.49 grammes of ice on a mathematical approach.

11.  As for the herbal cannabis, according to Chor Lui, the benchmark tariff sentence is 4 months for under 2,000 grammes.  That case involved 0.24 grammes of herbal cannabis and a sentence of 2 months on a plea (3 months starting point)  was affirmed on appeal.  However, we noted that the facts there are very different from the present case.

12.  The next step is to consider the “notional sentence after trial” by taking into account the aggravating factors.  Whilst ice and cannabis are disparate in nature, aggravating features such as the sale of cannabis in “roll-up” cigarettes as a commercial activity in a discotheque and previous drug related convictions in the case of Chor Lui are absent in the present case.  The appellant in our case has a clear record.  Our view is that whilst the amount of cannabis is negligible, one month enhancement in respect of the presence of two types of drugs is appropriate.

13.  Form 8 status is a recognized aggravating factor:  HKSAR v Shah Syed Arif [5], HKSAR v Ali Saif.  In Ali Saif, the Court of appeal indicated:

“17. When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.”

14.  Various other District Court cases were submitted for comparison and reference purpose.  These cases were referred to in the leave judgment.  We do not propose to repeat them.  Mr Boyton submitted that these cases show that the overall starting point was manifestly excessive.

15.  HKSAR v Chaudhry Mohammad Asif[6], and HKSAR v Mohabub Zaman Mithu[7] both involve larger amount of drugs and enhancement of 7.5 months and 6 months were applied respectively for the appellants’ Form 8 status.  Our view is that 6 months’ enhancement in the present case for the appellant’s Form 8 status would be sufficient to reflect the aggravation.

16.  In conclusion, the enhancement of one month and 6 months for the above aggravating features takes the notional sentence after trial to 64.5 months.  With the one-third discount for his plea, the sentence should be 43 months’ imprisonment.  The sentencing process by the judge failed to take sufficient regard to the various steps in Herry Jane Yusuph causing the ultimate sentence to be out of proportion to the overall criminality in all the circumstances of the offence and the offender.