HKSAR v. AHMED SANI SALMAN

DCCC 808/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 808 OF 2016

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REASONS FOR SENTENCE

1.  The defendant has pleaded guilty to one charge of trafficking in 73.0 grammes of a solid containing 41.8 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of possession of 3.00 grammes of a crystalline solid containing 2.95 grammes of methamphetamine hydrochloride (“ice”) and 0.20 gramme of a powder containing 0.11 gramme of cocaine , contrary to section 8 of the Dangerous Drugs Ordinance (charge 2), and one charge of possession of apparatus fit and intended for the inhalation of ice, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

2.  In summary at 9:05 a.m. on 23 December 2015 the defendant was seen by police officers leaving Room C1 on the 1/F of Lee Shun Building, Nos. 157-159 Lockhart Road in Wanchai.  When the police announced their presence the defendant discarded a black bag and a plastic Coca-Cola bottle.

3.  DPC 4644 picked up the black bag inside which was found four re-sealable transparent plastic bags containing cocaine.  DPC 4644 also found on a table in unit C1 an electronic scale and 86 re-sealable plastic bags (charge 1). 

4.  On the table DPC 4644 also found one transparent plastic bag containing ice.  DPC 8259 searched the defendant and found inside his underpants a $20 banknote containing cocaine (charge 2). 

5.  The Coca-Cola bottle was found to contain traces of ice together with a straw.  A glass vial together with a transparent plastic tube and a lighter were found next to the Coca-Cola bottle (charge 3).

Mitigation

6.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Sherry, including that after the murder of his father in Pakistan this led to trouble in Pakistan which forced the defendant to come to Hong Kong in 2000.  The defendant was deported to Pakistan in 2002 but still found living there intolerable and therefore returned to Hong Kong in 2003. Subsequently the defendant filed a torture claim which is now the subject of appeal. 

Trafficking in cocaine

7.  The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years[3]. I am satisfied the proper starting point after trial for 41.8 grammes of cocaine, based on quantity alone, is 7 years and 4 months’ imprisonment. 

Aggravating features

8.  In Lau Tak Ming the Court of Appeal said a sentencing judge may properly take into account previous history of narcotic offences.  The defendant has one conviction for trafficking in a dangerous drug in 2011 when he was sentenced to 27 months’ imprisonment.  The defendant also has convictions in 2011 for possession of drugs and possession of equipment for taking drugs and in 2016 for possession of drugs for an offence committed in 2015 prior to the present offences.  In the circumstances by reason of the defendant’s persistent offending I enhance the starting point by 2 months to 7 years and 6 months’ imprisonment. 

9.  On 8 July 2016 the defendant was sentenced in Eastern Magistracy to 5 months imprisonment having been convicted after trial of one charge of possession of a dangerous drug[4]. The offence was committed on 18 December 2015.   The defendant was granted police bail.  Five days later the defendant committed the present offences.  The commission of offences on bail is an aggravating feature of sentence.  I enhance the starting point by a further 3 months’ to 7 years and 9 months’ imprisonment. 

10.  The commission of offences by refugees or torture claimants is also capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation.  I am satisfied that trafficking in a dangerous drug is an offence which affects the community and reputation of Hong Kong[5].  In the circumstances I enhance the starting point by a further 6 months to 8 years and 3 months’ imprisonment. 

11.  A starting point of 8 years and 3 months’ imprisonment exceeds the maximum jurisdiction of the court of 7 years’ imprisonment. The defendant is therefore somewhat fortunate the case was not committed to the High Court for trial.  I am nevertheless satisfied I can take a starting point in excess of the jurisdiction so long as the sentence imposed reflects a meaningful discount from the maximum of 7 years[6]. 

Possession of ice

12.  In HKSAR v Mok Cho Tik the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant[7].

13.  Taking into account the quantity of ice is 2.95 grammes, I am satisfied a starting point of 15 months’ imprisonment is appropriate.  In determining the starting point I disregard the small quantity of cocaine found in the defendant’s underpants, which I am satisfied does not add to his overall criminality. 

Possession of apparatus fit and intended for inhalation of ice

14.  For possession of apparatus fit and intended for inhalation of ice I am satisfied a starting point of 3 months’ imprisonment is appropriate. 

Discount for pleading guilty

15.  The defendant first appeared in the District Court on 23 September 2016 when a plea of not guilty to the charges was indicated and a trial date set down for 15 February 2017.  The new sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[8].

16.  On 15 February 2017 the trial was adjourned at the request of the defence.  On 30 March 2017 the pleas of not guilty were confirmed and a new trial date fixed for 24 July 2017.  On that day the defence indicated to the court that the defendant would plead guilty to all charges.  The next day the defendant pleaded guilty to all the charges.

17.  I am satisfied the defendant is not entitled to the full one-third discount.   Although the trial was re-fixed at the request of the defence the plea having been entered before the trial started, a discount of 20% for pleading guilty is appropriate.

18.  Mr Sherry submits that as the charge sheet is dated 2 September 2016, the same day the new guidelines were handed down by the Court of Appeal, and the defendant first appeared in the District Court shortly thereafter on 23 September 2016, I should exercise my discretion and give the defendant a greater discount than 20%. 

19.  I have no hesitation in rejecting this submission.  The Court of Appeal made clear that the revised practice of affording discounts of sentence for pleas of guilty applied only to cases in the District Court where trial dates had not yet been fixed[9]. As noted already the defendant first appeared in the District Court on 23 September 2016 after the guidelines were handed down. 

20.  Whether or not the new guidelines were fully explained or understood by the defendant when he first appeared in the District Court, by the time he confirmed his pleas on 30 March this year he was represented by Mr Sherry.  At no time has Mr Sherry suggested the defendant was not aware of the new guidelines. 

Sentence

21.  Taking into account the pleas of guilty, that the defendant is to be given a meaningful discount from the maximum jurisdiction of the court and all the mitigating circumstances, the defendant is convicted and sentenced as follows:

Charge 1 - 5 years and 9 months’ imprisonment;

Charge 2 - 10 months’ imprisonment; and

Charge 3 - 2 months’ imprisonment.

Totality

22.  Notwithstanding the dangerous drugs in the trafficking charge and the possession charge are different, I am satisfied in all the circumstances of the case that concurrent sentences are appropriate.  The total sentence to be served by the defendant is 5 years and 9 months’ imprisonment, which I am satisfied properly reflects his criminality on the three charges.