HKSAR v. ADEEL MUHAMMAD

DCCC 520/2023

[2024] HKDC 941

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 520 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to two charges today. The 1^st charge of the indictment is possession of dangerous drugs relating to a quantity of cannabis in herbal form, a total of 5.25 grammes of that, and another quantity of 0.35 grammes of cocaine. The 2^nd charge is a charge of trafficking in dangerous drugs and again he has pleaded guilty to that. The particulars show a number of different drugs in different quantities. There is cannabis in herbal form, tablets of methamphetamine dioxide, some traces of LSD, a liquid containing THC or tetrahydrocannabinol, also quantities of cocaine and ketamine. The methamphetamine is also colloquially known as Ecstasy. These were in a house in Lamma Island.

2.  The facts which have been agreed are straightforward. The police on 21 November 2022 were conducting an anti-crime operation on Lamma Island where the defendant was seen and was intercepted. After interception, various items were found upon him, the mobile phones, cash, keys to premises and also four plastic bags containing the drugs found in charge 1 which are charged, as we can see, as possession of those drugs.

3.  The enquiries then went to a premises at 16 Sha Po Old Village in Lamma Island which was believed to be a storage space for drugs. In summary, the premises was investigated and the drugs found in the 2^nd charge were located there at various locations and found in various packets. The other evidence that has been agreed is the tying of the defendant to those premises by way of the person who had in fact rented the premises. In any event, the defendant admits that he was trafficking in the drugs found in that premises and it would appear it was some kind of storeroom or storage facility for drugs.

4.  As far as the value of the drugs are concerned, the drugs found in respect of charge 1 are valued at $1,433.34 and the drugs found in the house which form part of charge 2, the street value is estimated at $22,516.25.

5.  Turning now to the defendant’s antecedents and his mitigation, the defendant is now aged about 33, he is born in Pakistan, educated to elementary school in Pakistan. He is single, apparently he lived alone in Hong Kong. He is in Hong Kong under recognisance, he is a Form 8 holder. He came to Hong Kong from Pakistan where he was born in 2016 and as such he will be primarily surviving on government dole described as ISS which I am told is about $2,000 a month. Notwithstanding that, the defendant is of clear record in Hong Kong. He has one outstanding matter relating to his entry into Hong Kong which is a charge of remaining but that will be dealt with within, no doubt, his asylum claim.

6.  Defendant has admitted his responsibility for these offences and has indicated an intention to plead guilty from the earliest opportunity, so he is entitled to a full one-third discount from any sentence the court will impose.

7.  As far as the approach to sentence is concerned, on charge 1, that is fairly simple. The normal sentence in respect of possession of dangerous drugs where a prison sentence is to be imposed is a sentence of between 12 to 18 months’ imprisonment. Nothing exceptional about charge 1, I will take starting point of 12 months’ imprisonment on that charge, reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

8.  In respect of charge 2, the court is dealing with a number of different drugs here. The general overall approach, this sentencing can be found in the recent case of HKSAR v Herry Yusuph, that is at [2021] 1 HKLRD. From that case it can be determined that the court has to determine the role and culpability of the defendant based on the evidence presented. The case sets out a six step approach to achieve this. It also indicates that a purely arithmetical approach to sentencing is not appropriate. In sentencing in dangerous drugs cases the court is required to exercise a discretionary function. The guidelines are not to be followed arithmetically or mathematically but are simply a guidance to the court in determining the appropriate bracket within which sentencing should be framed. However, having said that, the general approach to sentencing in respect of cases of trafficking in dangerous drugs is governed by guideline sentences in order to achieve consistency.

9.  As far as the drugs found in the house are concerned, firstly looking at the cocaine, where a quantity of up to 10 grammes, the court is enjoined to bracket sentence within 2 to 5 years of imprisonment. There are quantities of ketamine and ecstasy or methamphetamine. For quantities between one to 10 grammes, a sentence bracket of between 2 to 4 years’ imprisonment is normally imposed. Finally, there is also herbal cannabis. For a quantity under 2,000 grammes, a sentence of imprisonment of around 4 months or less is appropriate. There is also a small or trace quantity of LSD.

10.  As we are dealing with multiple drugs or a drug cocktail, there is also authority governing the correct approach to be taken by the court in respect of drug cocktails. Overall, the general approach can be found in the case of HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, where two approaches are set out. One is the individual approach and the other one is a combined approach and in the case of Yip it said that the combined approach whereby the court looks at the overall quantity of drugs rather than the individual parcels. In taking a global view, the court is then able to assess realistically and fairly the appropriate sentence. For example, sentence on the basis of individual drugs may lead to absurdity where the addition of the sentence for each individual drug leads to a higher overall sentence than if the whole quantity, a cocktail or batch merely contained the more or most serious of the various drugs. In the combined approach, the court would normally take the starting point for the more or more serious of the various drugs as the base starting point or the base drug and then adjust the sentence to take into account the presence of other drugs.

11.  In any event, in a later case of Chan Yuk Leong which is at CACC 318/2013, it was said that that court should when determining the appropriate sentence look at three other tests of that figure as a way of cross-checking whether the sentence that the court eventually arrives at is manifestly excessive and this would be on the basis of sentences imposed after trial. The tests are as follows: There is the “absurdity test”, this is a shorthand expression where the court compares the proposed sentence for the sentence where it is assumed that the entire quantity seized contained only the most serious drug. The second test is the “conversion test” as a means of cross-checking where the court compares the tariffs applicable to different drugs to arrive at a conversion rate so the single tariff for one drug can then be applied to the entire quantity seized. And the final test is the “ratio test” which was found in the case of HKSAR Yau Ka Ming at CACC 144/2013, where the court imposed a sentence in that case allowing for the ratio of the weight of the two different dangerous drugs and their related range of sentences but also having regard to the aggravating factor the applicant was trafficking unlawfully in two serious dangerous drugs.

12.  In this case, Mr Keung for the defence has very helpfully provided an arithmetical determination based on those three different tests. On the individual approach, the total sentence of imprisonment would be one of over 88 months’ imprisonment. Considering the baseline figure for the combined approached, cocaine, which in this case is the most potent drug or the most serious drug, would lead to a starting sentence arithmetically determined at 51.6 months. Using the absurdity test, it would attract a sentence of almost 100 months. The conversion test using a conversion in cocaine would lead to a sentence of some 60 months or 5 years’ imprisonment. Using ketamine and ecstasy, which of course have the same guideline, would lead to a figure in the region of 54.1 months.

13.  In this case, the ratio test can also be applied. Of course the bulk of the drug found in the premises was cannabis and THC, some 86.6 of the total weight, which would lead to a divergent sentence of some 20.8 months which is clearly out of line with the other tests.

14.  The defence in this case would urge me to take the ratio test because it clearly yields the most favourable result for the defendant. Nevertheless, it does seem to me to be out of line with the other tests and in any event, this is simply a test by which to assess the figure that would be arrived at by using the combined approach. Of course, I consider that in a case such as this the combined approach is the correct approach. That would lead, simply approaching it mathematically, to a starting sentence in the region of 51 to 52 months and then additions being added for the aggravating factors.

15.  The aggravating factors clearly here are as follows: Firstly, the defendant is a Form 8 holder, and secondly, he is trafficking in a cocktail of drugs, both of which are substantial aggravating factors. Normally the existence of the Form 8 status would lead to an additional sentence of somewhere beyond 6 months’ imprisonment where the case is one of trafficking in dangerous drugs but also the existence of a cocktail of drugs is also a further aggravating factor to take into account although one may argue that it is already taken into account when during the combined approach itself.

16.  Now I also must sentence having regard to the case of Yusuph which enjoins me to determine a proper overall sentence and not simply approach the case in a mathematical way in adding up the various figures that we determined are appropriate.

17.  I also bear in mind that in the categories of the guidelines with which we are dealing with here, they are weighted towards deterrence which can lead to a higher figure that would be the case if the defendant were in fact trafficking in a larger quantity of drugs.

18.  In determining the proper sentence on charge 2, I have taken into account all these factors. I do consider that the baseline figure of somewhere around 51 months is appropriate. The aggravating factor of this being a cocktail of drugs and the presence of the other drugs in my view lead to a further 6 months’ imprisonment on top of that, and finally 3 months to take into account the fact of the defendant’s Form 8 status. This would lead to an overall figure of 60 months’ imprisonment on charge 2. I propose to adopt that figure on charge 2.

19.  The defendant is entitled of course to a one-third discount which leads to a final sentence on charge 2 of 40 months’ imprisonment.

20.  Having regard to the overall totality of sentence, I am going to order that those sentences be served concurrently for an overall total of 40 months’ imprisonment.