HKSAR v. MAJID MUHAMMAD

CACC 157/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2015

(ON APPEAL FROM DCCC NO. 75 OF 2015)

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JUDGMENT
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1.  The applicant seeks leave to appeal against a sentence of 44 months’ imprisonment passed upon him by HH Judge Douglas Yau in the District Court on 28 April 2015, when the applicant pleaded guilty to one charge of trafficking in a dangerous drug, namely 23.6 grammes of a crystalline solid containing 11.4 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.  At about 1:00 am on 27 November 2014, two police officers observed the applicant acting furtively outside Ching Wo House, Tsz Ching Estate, Kowloon. They intercepted him and conducted a body search. In the right, front pocket of the applicant’s jeans was found a re-sealable transparent plastic bag containing what was later determined by the government chemist to be cocaine in the quantities set out in the charge, the estimated street value of which was $16,416. Having been arrested and cautioned for the offence of trafficking in a dangerous drug, the applicant remained silent.

3.  In a subsequent video-recorded interview, the applicant initially said he did not know what was inside the plastic bag, but later admitted having agreed to deliver the dangerous drug for a person called “Ali GG” in return for a reward of $200. The applicant said that Ali GG provided him with a mobile telephone with which to contact the person who was to obtain the dangerous drug from him, but that person fled on seeing the police shortly before the applicant’s arrest. Accordingly, he said he was never paid the $200 reward.

4.  At the hearing on 28 April 2015, the applicant accepted by virtue of his admission of the Summary of Facts that he possessed the cocaine concerned for the purpose of trafficking.

The judge’s reasons for sentence

5.  The applicant was 26 years of age at the time of sentence. He was born in Pakistan. Fearing for his life after a business dispute with a gangster, he claimed that he had come to Hong Kong and lodged a torture claim. He had been an abuser of cannabis and heroin for several years in Pakistan. Upon arriving in Hong Kong, he continued consuming cannabis and would, on occasions, consume cocaine. One of the people from whom the applicant purchased dangerous drugs was AliGG.

6.  The applicant had one previous conviction in 2011 for possession of a dangerous drug, and another for trafficking in a dangerous drug for which he was sentenced on 10 April 2015 to 2months’ imprisonment (KCCC1233/2015 refers). In sentencing him, the judge noted that the applicant had committed the subject trafficking offence whilst on police bail in connection with the trafficking charge for which he was sentenced on 10 April 2015.

7.  In mitigation, defence counsel told the judge that of the cocaine concerned, the applicant anticipated consuming about 3 grammes of the quantity himself together with other persons. The judge rejected that submission for these reasons: (i) no drug consumption paraphernalia was found on the applicant’s person upon his arrest; (ii) the issue of self-consumption was advanced for the first time only on the date of the applicant’s sentence; and (iii) the applicant had admitted the Summary of Facts before the judge, which averred that he had had the intention to traffic in the whole of the cocaine for reward.

8.  The judge adopted a starting point of 63 months’ imprisonment for trafficking in 11.4 grammes of cocaine narcotic. He indicated that had the applicant intended to consume 3 grammes of the 23.6 grammes of crystalline solid concerned (making the cocaine content of 20.6 grammes of a crystalline solid about 9.95 grammes on a pro rata basis, and the cocaine content of 3 grammes of a crystalline solid about 1.5 grammes), he would have adopted a starting point of 6 months’ imprisonment for simple possession of the 1.5 grammes of cocaine and a starting point of 57 months’ imprisonment for trafficking in the remaining roughly 9.95 grammes of cocaine, still resulting in an overall starting point of 63 months’ imprisonment.

9.  The judge further considered that the starting point was aggravated by the fact that the applicant had committed the offence whilst on police bail for a similar offence and, accordingly, added 3 months’ imprisonment to the 63 months’ starting point, making 66 months’ imprisonment after trial.

10.  Giving the applicant the usual one-third discount for his plea of guilty, the judge sentenced him to 44 months’ imprisonment. Noting that the trafficking offence for which the applicant was sentenced to 2months’ imprisonment in KCCC 1233/2015 was separate and distinct from the subject trafficking charge, and that the applicant had committed the subject trafficking offence whilst on police bail for that offence, the judge ordered the 44 months’ imprisonment for the present case to be served consecutively to the 2months’ imprisonment in KCCC1233/2015.

Grounds of appeal against sentence

11.  In his hand-written statement attached to the Notice of application for leave to appeal against sentence filed on 12 May 2015, the applicant asked for the “mercy of the law”, making the point that he had pleaded guilty at the first available opportunity in order to express remorse and that he had a wife and a son in Pakistan waiting for his return to look after them. The applicant did not articulate any further grounds of appeal in that statement.

Consideration

12.  I would have had reservations about making, as the judge indicated, a starting point of 6 months’ imprisonment for simple possession of part of the drugs wholly consecutive to the starting point of 57 months’ imprisonment for trafficking in the remainder. If there had been no assertion by the applicant that some of the drugs were for his own consumption, the judge would have adopted an overall starting point of 63months’ imprisonment for the whole amount. In other words, the judge would have arrived at the same starting point with or without the quantity claimed to be for the applicant’s own consumption. That could not be right as a matter of logic because the applicant would effectively have been treated as trafficking in the amount which he was claiming (and the judge was accepting) was for his own consumption.

13.  Of course, if the amount claimed for the applicant’s own consumption had made no appreciable difference to the amount for trafficking purposes under a particular tariff band, then the starting point would have been the same and there would have been no difficulty. However, here the judge specifically stated that, had he accepted that some of the drugs were for the applicant’s own consumption, he would have reduced the starting point by 6 months to 57 months’ imprisonment for the remaining quantity in which the applicant was trafficking. That was presumably because the two quantities of drugs for trafficking purposes (ie the total amount stated in the charge and the amount stated in the charge minus the notional amount for self-consumption) would have fallen into different tariff bands. Yet the judge said he would then have added the 6 months’ imprisonment back for the applicant’s simple possession of the same amount. That, in my view, would not have been correct in the circumstances of the quantities concerned.

14.  In any event, although I have reservations about the logic of doing what the judge might have done, the fact is he did not do it because he did not ultimately accept, for reasons which he explained, that any of the dangerous drugs were for the applicant’s own consumption. So, my concern about the judge’s approach in this regard is assuaged.

15.  However, the judge went on to say that he adopted a starting point of 63 months’ imprisonment for trafficking in 11.4 grammes of cocaine. Many judges would, with respect, have adopted a starting point of 60 months’ (or 5years’) imprisonment on these facts, given that the quantity was just over the threshold which would have applied to 10grammes of cocaine narcotic. But even on a strictly arithmetical approach (which approach the judge himself applied to the amount said to be for the applicant’s own consumption) in respect of 11.4 grammes of cocaine narcotic, the starting point would only been 61 months’ imprisonment. The judge then added 3 months for committing the offence whilst on police bail and further ordered the resulting 44months after plea to run wholly consecutively to the sentence passed in KCCC1233/2015.

16.  On balance, I think there is a reasonable argument that the resulting sentence may have been manifestly excessive by virtue of the cumulative effect of (i) a slightly high starting point for the quantity of cocaine concerned; (ii) an extra 3 months for committing the offence on police (as distinct from court) bail; and (iii) the making of the resulting sentence after plea run wholly consecutively to an existing sentence. It may well be that each of these individual decisions was within the range of options open to the judge in the proper exercise of his sentencing discretion. However, when taken together, I consider that there is enough for the applicant to be granted leave to appeal his sentence.

17.  Leave to appeal against sentence is accordingly granted. Since the applicant was unrepresented before me, legal aid having earlier been refused, I have granted the applicant legal aid for the purpose of arguing his appeal against sentence.