HKSAR v. MAHMOOD MINHAS SAJED

DCCC588/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 588 OF 2011

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Reasons for Sentence

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1.  Defendant, you were charged with one charge of trafficking in dangerous drugs (Charge 1) and one charge of possession of Part 1 poison (Charge 2).

2.  In relation to Charge 1, you pleaded not guilty to the charge of trafficking in dangerous drugs and eventually you were acquitted after trial of that offence but convicted upon your own guilty plea of the offence of possession of dangerous drugs.

3.  At the beginning of the trial you pleaded guilty to Charge 2 and have been convicted accordingly. 

4.  In sentencing of the two offences I have taken into account the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs concerned, your background, information and recommendation in a DATC report and mitigation put forward on your behalf.

5.  The facts of the case are simple.  You were intercepted by police officers when you had boarded a private car with another person.  In your possession were 6.65 grammes of solid and powder containing 5.59 grammes of cocaine, 2.85 grammes of a crystalline solid containing 2.79 grammes of methamphetamine hydrochloride and 15 tablets containing sildenafil, commonly known as Viagra. 

6.  I was told that you are 43 years of age, you were born in Hong Kong.  You were living with your wife and 10 children.  You were the sole breadwinner of the family.  Your family members have to receive CSSA since your income was not stable.  You have been engaged in the construction field and internet bar before, then for about a decade you have been a second-hand mobile phone dealer. 

7.  Your counsel told me and it was confirmed by the prosecution that you have provided a witness statement implicating the person you mentioned when you testified.  The prosecution informed the court that the account you had given in the witness statement is by and large in line with your testimony and no information is provided which may further facilitate the location of the person in question.

8.  Investigation in connection with this person had all along been conducted and will continue.  However, it is practically difficult at present to assess the usefulness of the information provided by you.

9.  Your counsel said it is your desire to be sentenced today rather than adjourning the matter.  In the circumstances of the present case, in particular bearing in mind the uncertainty in the length of adjournment required and indeed the uncertainty of the situation even if an adjournment is granted, and also the length of time you have been remanded in custody already, I accept that it is appropriate not to adjourn sentencing but to deal with the matter today. 

10.  According to the DATC report, you started to abuse mandrax in 1987.  Since 1998 you have been consuming cocaine and “Ice”.                  

11.  Obviously drug abuse is a major problem for you.  Despite having received treatment in DATC, you were not able to get rid of the vice habit.  In December last year you were sentenced to 6 months’ imprisonment for the offence of possession of dangerous drug.  I was told that the dangerous drugs involved in that case were 7 grammes of “Ice” and 1 gramme of cocaine.  You were released on 12 January 2011 but in just 2 months you committed the present offences. 

12.  I learnt from the DATC reports that based on the medical examination, clinical observation and facts available, in particular that you had stayed away from drugs for 5 months during your remand, the medical officer is of the opinion that you are not a drug-dependant any more.

13.  I see no reason not to accept this opinion.  At the present stage, it is inappropriate to send you to DATC for treatment.  The DATC report gives detailed background information of you which I do not intend to recite.  In sentencing I take into account the information. 

14.  In all the circumstances, I am of the view that an imprisonment term is appropriate for both charges. 

15.  For Charge 1, the dangerous drug charge, I take into account the following factors.

16.  You were in possession of two different types of dangerous drugs, namely cocaine and “Ice”, both of substantial harm.  In the light of the narcotic quantity of the cocaine you possessed, 5.59 grammes, the latent risk cannot be said to be not substantial.  In this regard, I take into account the different nature of dangerous drugs in your possession, their respective quantity, the empty packets in your possession and you were found in a place nowhere near your home.

17.  It is the sixth time you were convicted of the offence of possession of dangerous drugs.  You have also been convicted of the offence of smoking dangerous drugs and possession of Part 1 poison before.  

18.  I have considered cases such as HKSAR v Minnie [2011] 4 HKC 136 and HKSAR v Jarhia Kuldeep Singh CACC96/2006 as well as the cases cited therein.  In my judgement a starting point of 27 months is appropriate.  This includes 9 months for latent risk and 6 months for the other two factors I have just mentioned.  

19.  For Charge 2, I adopt a starting point of 3 months. 

20.  You have pleaded guilty to both charges and are therefore entitled to a one-third discount. 

21.  I note that you have provided a witness statement to the police implicating another person.  I also note that you indicated your willingness to testify against that person in case he is arrested and prosecuted.  It was held in cases such as SJ v Wong Kwok Kau [2004] 3 HKLRD 208, that when a court decides whether to grant the accused who has assisted the authorities a discount on that account, it should confine itself to what has occurred at the time of sentence.  I also note what Keith J said in R v Wong Kam Chu [1993] 2 HKC 700, about the appropriate course to take in a situation like the present case.

22.  I bear in mind that unless there is a prompt prosecution of the person in question, you might not be required to testify at a time before completion of your present sentence.  In consideration of this matter, I note there is no indication that the offer of assistance were not only first raised at the time of mitigation and not earlier despite you had been arrested and remanded since March this year. 

23.  Having considered the whole of the relevant circumstances, I am of the view that one-third is the extent of discount you are entitled to in this case.  

24.  By reason of the matters aforesaid, I sentence you to 18 months’ imprisonment for Charge 1 and 2 months for Charge 2. 

25.  Having regard to the whole circumstances of the case, I order the two sentences to run concurrently.  As a result, you are to serve a total sentence of 18 months’ imprisonment.