HKSAR v. HOSSAIN ABUL

DCCC 906/2021

[2022] HKDC 894

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 906 OF 2021

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Reasons for Sentence

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1.  The defendant was charged with one count of trafficking in a dangerous drug, namely, 12.74 grammes of cocaine. He pleaded not guilty to the charge and was convicted after trial.

2.  The Prosecution’s case is simple.  At about 9:50 pm on 13 June 2021, 2 uniformed police officers on patrol in Tsim Sha Tsui area saw 2 males alighting a taxi outside Mirador Mansion on Nathan Road.  Upon seeing the officers, the defendant immediately parted with the other male and walked to another direction.  The officer gave chase and saw the defendant dropping 2 packets onto the ground when being intercepted. The 2 packets were found to contain a total of 12.74 grammes of cocaine with a street value of $22,838. 

Mitigation

3.  The defendant was born in Bengal and is now aged 49.  He got married in 1999 and has 3 sons and 2 daughters, ranging from 14 to 21 years old.  He had a clear record in Hong Kong.  He is an illiterate and worked as a farmer in Bengal.  With assistance of his friend, the defendant said he made arrangements to go to China and then sneaked into Hong Kong in 2015.  He relied on ISS allowance for living. It was submitted that the role of the defendant in this case was minor.  He acted as a courier and was told he would receive $100 only. The street value of the drug is not high and only one kind of dangerous drug was involved. Defence counsel accepted that the present drugs trafficking offence can attract a starting point of 5 years and 2 months in prison.  Defence counsel also cited another District Court case whereby the defendant in that case got an enhancement of 4 months by virtue of his Form 8 holder status, HKSAR v Yuhono V Tedi [2022] HKDC 732. 

Sentence

4.  There is no dispute that the defendant did possess the 2 packets, and the identity of the defendant is not challenged.  The defendant was seen dropping 2 packets onto the ground when being intercepted. The defendant said he would be paid $100 for the delivery. The defendant is a Form 8 holder.  The Court of Appeal has said repeatedly that Form 8 holder committing a crime in Hong Kong should expect an enhancement of sentence. In HKSAR v Singh Gursevak [2019] HKCA 179, the Court of Appeal cited with approval of the case of HKSAR v Ali Saif [2018] 6 HKC 19 and said (at para 38 and 39): 

“The following principles can be derived from this passage of the judgment:

(i)  the purpose of the enhancement is for the courts to ‘mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city’;

(ii)  the enhancement must be of such a length that it will deter Form 8 holders from being involved in serious crime; and

(iii)  in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.

Thus, the sentencing principle that underlie the assessment of the amount of the enhancement are:

(i)  denunciation by the courts of criminal activity by Form 8 holders; and

(ii)  deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.”

5.  In HKSAR v Butt Muhammad Gulzar [2020] HKCA 597, the Court of Appeal reiterated (at para 39)  that the primary goal of the enhancement for the Form 8 status is denunciation and deterrence through severe punishment. 

6.  The sentencing guidelines for drugs trafficking offences are well established.  In normal circumstances, trafficking of 10 to 50 grammes of cocaine attracts a starting point of 5 to 8 years. In the present case, the drugs involved is 12.74 grammes of cocaine with a street value of $22,000-odd. 

7.  The defendant was convicted after trial and I cannot see any mitigating grounds to give him any sentence discount.  As such, I adopt a starting point of 62 months and enhance the sentence by 6 months in light of his Form 8 holder status. I sentence the defendant to an imprisonment term of 68 months.