HKSAR v. MOHAMMED TOFAEL AHMED

DCCC 237/2018

[2018] HKDC 1192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 237 OF 2018

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REASONS FOR SENTENCE

1.  The defendant, a Form 8 holder from Bangladesh, pleads guilty to four charges of trafficking in a dangerous drug, 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 today.  In summary in late 2017 CIP Johnson and SP Bennett acted as undercover police officers in an anti-narcotic operation.   

3.  CIP Johnson first became acquainted with the defendant on 17 November 2017 when the defendant approached him on Nathan Road and offered to sell him dangerous drugs.

4.  On 2 December 2017 CIP Johnson and SP Bennett conducted controlled purchases of dangerous drugs with the defendant.  At about 8:59 p.m. CIP Johnson met the defendant outside No. 1A-1B Mody Road where the defendant sold CIP Johnson one plastic bag inside which was 0.68 gramme of a powder containing 0.48 gramme of cocaine for $1,200 (charge 1). 

5.  At about 9:49 p.m. the same evening when SP Bennett was walking near the junction of Nathan Road and Mody Road the defendant approached SP Bennett and offered to sell him dangerous drugs.  At the exit of Mirador Mansions the defendant sold SP Bennett one plastic bag inside which was 0.70 gramme of a powder containing 0.52 gramme of cocaine for $1,500 (charge 2). 

6.  At about 6:15 p.m. on 10 December 2017 when SP Bennett was walking past the 7-11 convenience store near Mirador Mansion the defendant again offered to sell him dangerous drugs.  On the staircase of Mirador Mansions the defendant sold SP Bennett one plastic bag inside which was 0.66 gramme of a powder containing 0.46 gramme of cocaine for $1,500 (charge 3). 

7.  Five minutes later the police arrested the defendant.  Upon search DPC 9569 found inside the defendant’s right front trouser pocket two plastic bags inside which was a total of 1.22 grammes of a powder containing 0.83 gramme of cocaine (charge 4). 

8.  The defendant was also found in possession of two mobile phones, including the one he communicated with CIP Johnson and the marked money paid by SP Bennett.

9.  Under caution in two video recorded interviews the defendant said, inter alia, that it was the first time he committed the offence of trafficking in dangerous drugs and that he committed the offence as he needed money for his mother who had kidney disease. 

Mitigation

10.  I have carefully considered everything said on behalf of the defendant by Mr Percy together with the defendant’s mitigation letter, in particular that the defendant’s mother passed away shortly after his arrest and that his father is paralysed. I take into account that the defendant has no previous drug convictions. 

Guidelines

11.  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[3].  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.

12.  I am satisfied that the correct starting point after trial for charges 1, 2 and 3 is 2 years’ imprisonment and for charge 4 is 2 years and 3 months’ imprisonment.

Aggravating feature

13.  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. 

14.  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.

15.  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[4]. 

16.  I am satisfied all charges are serious offences of trafficking and that the starting point on each charge is to be enhanced by 6 months’ to 2 years and 6 months’ imprisonment for charges 1, 2 and 3 and 2 years and 9 months’ imprisonment for charge 4.

17.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 1 year and 8 months’ imprisonment on charges 1, 2 and 3 and to 1 year and 10 months’ imprisonment on charge 4.

Totality

18.  Mr Percy refers to the sentence imposed earlier this year in the District Court in HKSAR v SM Showan[5]. Whilst there are similarities with the present case, I am of the view the sentence imposed in that case was lenient both in respect of the enhancement and on the question of totality. 

19.  In HKSAR v Muhammad Riaz Awan a case concerning three acts of trafficking cocaine and ice to undercover police officers in Wanchai, the Court of Appeal in upholding a total sentence of 4 years’ imprisonment on a plea of guilty held that a deterrent sentence was required where repeated commercial trafficking took place in an area where local residents and tourists often gathered[6]. 

20.  Although there is no evidence the defendant was acting together with others as part of a well-organized operation, the trafficking was in an area where local residents and tourists often gathered.

21.  I am satisfied that a total sentence of 3 years and 8 months imprisonment properly reflects the defendant’s criminal culpability on the four charges and takes into account the defendant’s personal circumstances, including that he has no drug convictions, the death of his mother and ill health of his father and the seriousness of the offences, including the total quantity of cocaine[7].  

22.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 2 – 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to charge 1;

Charge 3 – 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to charges 1 & 2; and

Charge 4 – 1 year and 10 months’ imprisonment with 8 months consecutive and 14 months concurrent to charges 1, 2 & 3.

The total sentence to be served by the defendant is 3 years and 8 months’ imprisonment.