HKSAR v. MOHABUB ZAMAN MITHU

DCCC 231/2019

[2019] HKDC 1492

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 231 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars are that he on 8 January 2019 unlawfully trafficked in 7.33 g of a powder containing 4.98 g of cocaine; and 8 tablets containing 1.32 g of 3,4-mthylenedioxymethamphetamine (known colloquially as the drug “ecstasy”).

SUMMARY OF FACTS

2.  Police officers intercepted the defendant after spotting him acting furtively outside a building situated at Morrison Street in Sheung Wan.

3.  Upon search, 5 empty re-sealable plastic bags were found in the defendant’s wallet.  9 packets of cocaine as well as one packet of 8 tables of ecstasy were found inside his underpants.

4.  The defendant was arrested.  Cash of $3,228.50 and a mobile phone were found on his person.

5.  In the subsequent cautioned video recorded interview, the defendant claimed that the seized items were for his self-consumption.

6.  The estimated market value of the 9 packets of cocaine is $8,070, while that of the ecstasy is $664.

PREVIOUS CONVICTIONS

7.  The defendant has 5 previous convictions from 3 court appearances.  His first was in May 2007 for theft, and he was sentenced to 8 months’ imprisonment.  He was convicted in August 2007 for remaining in Hong Kong having landed unlawfully and was sentenced to an additional 16 months’ imprisonment.

8.  In April 2012, the defendant was again convicted of theft.  This time he was fined $800.

9.  In November 2014, the defendant was convicted of trafficking in dangerous drugs and possession of offensive weapon in a public place in the District Court.  He was sentenced to 56 months and 8 months’ imprisonment respectively, 4 months of the latter was ordered to be served consecutively, with a final total sentence of 5 years’ imprisonment.

10.  The defendant was last released from jail custody on 10 July 2017.

11.  I was told that the defendant had committed the present offence whilst he was on police bail in a District Court blackmail case.  Although the prosecution offered no evidence against the defendant in the end, Mr Parry very fairly conceded that the defendant’s conduct amounts to an aggravating factor.

MITIGATION

12.  The defendant was born in Bangladesh.  He is 43, holder of a Bangladeshi Passport.  His parents, younger brother and elder sister are all living in Bangladesh.

13.  The defendant is an asylum seeker.  He filed his torture claim in Hong Kong in 2007 and received his Recognizance Form (Form 8) from the Immigration Department in 2008.

14.  The defendant is married to an Indonesian lady, a fellow asylum seeker, who has a 2 and a half year old child from a previous relationship.

15.  I am told that the defendant is a drug abuser, as supported by his urine test conducted after his arrest, being positive for cocaine and ecstasy.

16.  It is put forward in mitigation that when the defendant had the money, he would consume cocaine 2 to 3 times a day, at a total of 0.5 g per day.

17.  The defendant also claims that the ecstasy was for his consumption.

18.  The defendant funds his drug habit with money from his friends and family.  The friends would include some local residents and fellow asylum seekers.  The defendant’s family would also remit money to Hong Kong.

SENTENCE

19.  The sentencing tariff for trafficking in heroin as laid down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine in Attorney General v Pedro Nel Rojas, [1994] 2 HKCLR 69.  The band of tariff for trafficking up to 10 grammes of cocaine is that of 2 to 5 years’ imprisonment.

20.  An arithmetical application of the tariff for 4.98 g of cocaine would lead to a starting point of 42 months’ imprisonment.  This is the basic starting point I adopt.

21.  The sentencing tariff for that of trafficking in ecstasy is found in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  The sentencing range for over 1 g to 10 g of the drug is that of 2 to 4 years’ imprisonment.

22.  An arithmetical application of the tariff for 1.32 g of ecstasy would lead to a starting point of slightly more than 24 months’ imprisonment.

23.  Since there is more than one type of drugs being trafficked, I will adopt the ‘combined approach’.

24.  If all the drugs were cocaine, the total of 6.3 g of cocaine would attract a sentence of 47 months’ imprisonment.  Therefore, the sentence should not be higher than this figure.

25.  Considering the quantity of ecstasy involved, the overall basic starting point I adopt is that of 45 months’ imprisonment.

AGGRAVATING FEATURES

Form 8 holder

26.  The defendant was a Form 8 holder at the time he committed the offence.  This is an aggravating factor for the purpose of sentencing, and the enhancement in a trafficking in dangerous drugs case is not expected to be less than 6 months’ imprisonment in order to achieve a meaningful deterrent effect: see HKSAR v Ali Saif [2018] 6 HKC 19[1].

SECOND CONVICTION FOR TRAFFICKING IN DANGEROUS DRUGS

27.  This the defendant’s second conviction for trafficking in dangerous drugs.  It would appear that the sentence previously imposed failed to achieve the desired deterrent effect.  This behavior of repeat offending is an aggravating factor.

COMMITTED OFFENCE WHILST ON BAIL

28.  The defendant committed the present offence whilst he was on police bail for another unrelated offence.  It demonstrated a total disregard for the law.  This is an aggravating factor unrelated to the earlier ones, and must also be reflected in the sentence.

29.  For the said aggravating factors, I enhance the defendant’s sentence by 6 months, 3 months and 3 months respectively, being a total of 12 months.

SELF-CONSUMPTION

30.  First of all, it is trite law that if a “significant proportion of the dangerous drugs was intended for the consumption of the defendant and not for trafficking”[2], the court has a discretion to grant a discount in sentence on this basis. 

31.  In the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal said this as to the amount of discount:-[3]

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

32.  The defendant, through his counsel, claims that one-third of the seized drugs was for his own consumption.

33.  In the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, Stuart-Moore VP pointed out that in deciding on the issue of self-consumption, the court should consider a number of factors, including:-

“(a) the quantity and value of the drugs;

(b) the general circumstances, including how the drugs were wrapped and how many packets were found;

(c) where the drugs had been discovered, whether at a residential address owned or rented in the trafficker's own name or in someone else's name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs, and, on the other, items used for consumption;

(e) whether the defendant was an addict or habitual user;

(f) the explanation given by the defendant following arrest;

(g) the defendant's general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant's criminal record in relation to previous drug offences.”

34.  Given the relatively small quantity of drugs involved in this case, the presence of the same two type of drugs in the defendant’s urine sample shortly after his arrest and the defendant’s previous drug related record, I am prepared to accept that a significant proportion of the drugs might be for the defendant’s self-consumption.  Significant in the sense that it is sufficient to have a real impact on the sentence.

35.  As pointed out by Mr Parry, the amount of discount to be granted is at the discretion of the court.  In the exercise of my discretion, I find that there should be a 10% discount on the basic starting point.

36.  To be clear, since the enhancements based on the three particular aggravating features in this case are not related directly to the quantity of drugs and therefore would not be affected by the fact that some of the drugs were for self-consumption, I find that the 10% discount should not be applied to the enhancements.

37.  The basic starting point upon the adoption of the combined approach is 45 months’ imprisonment.  A 10% discount of 4.5 months would lead to a sentence of 40.5 months.

38.  The 12-month total enhancement takes the sentence to 52.5 months’ imprisonment.

ONE-THIRD DISCOUNT

39.  The defendant is granted the full one-third discount for his timely plea of guilty.

40.  The final sentence is, therefore, 35 months’ imprisonment.