HKSAR v. Imtiaz

HCMA 401/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 401 OF 2015

(ON APPEAL FROM KCCC 518 OF 2015)

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J U D G M E N T

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1.The Appellant was charged with one count of trafficking in dangerous drugs (1^st charge) and one count of possession of apparatus fit and intended for inhaling dangerous drugs (2^nd charge). He pleaded guilty to the 2^nd charge, and the trial of the 1^st charge was heard before Magistrate Dr Cheung. The Appellant was represented under the Duty Lawyer Service. The Appellant was found guilty of the 1^st charge after trial. The Magistrate sentenced the Appellant to 2 years and 3 months for the 1^st charge and 3 months for the 2^nd charge, to run concurrently.

2.The Appellant now appealed against the conviction and sentence.

THE PROSECUTION CASE

3.It was admitted under s65C of the Criminal Procedure Ordinance that the Defendant was found sitting in front of a tea table inside a unit located at Room B, 8/F, No 88 Portland Street, Yau Ma Tei.  Before the police raided the unit, one Thai female and one Chinese male were seen leaving the said unit. 

4.Upon house search, the police found the following items on the tea table:

(1)   A nylon bag [P-10] inside which there were some other bags including 4 plastic bags containing a total of 25.75g of cannabis in herbal form [P-2];

(2)   A flannel pencil bag [P-11] containing various bags or packets containing 17.23g of cannabis resin [P-3], 0.57g of cannabis in herbal form [P-4], 4 plastic bags containing 0.59g of a solid containing 0.57g of ice [P-5], one plastic bags containing 0.51g of a solid containing 0.5g of ice [P-6], one bag of powder, one bag containing 0.3g of a solid containing 0.1g of cocaine, and one bag containing 0.04g of a solid containing MDMA [P-9]

(3)   An electronic balance [P-12];

(4)   A pair of forceps [P-13];

(5)   A lighter [P-14];

(6)   A pack of 200 smaller plastic bags [P-15]; and

(7)   A box of aluminum foils [P-16].

5.On the other hand, various items were found inside a hanging cabinet which include 2 inhaling device [P-17 & P-18] containing traces of ice and cocaine respectively.

6.The Police also found 2 mobile phones [P-22 and P-23], cash in the sum of HK$11,262 [P-19] and 3 keys on the Appellant.[1]

7.The Magistrate specifically mentioned that the Appellant offered to plead to the offence of possession of dangerous drugs but was refused by the Prosecution.[2]  The Magistrate ruled out the oral admission and the post-recorded notebook entries.  The Magistrate noted that “there is no dispute that the Defendant was in physical possession of the dangerous drugs in question.  The Defendant admitted a lesser charge of possession of dangerous drugs.”  The only issue is that whether the Defendant was in possession for the purpose of unlawful trafficking.  As there was no direct evidence to prove the trafficking, the Magistrate went on to consider the surrounding circumstances leading to his conclusion that the Appellant did engage in trafficking which was the only reasonable inference to be drawn.  The Defendant did not give evidence in court nor did he call any defence witness. 

GROUNDS OF APPEAL AGAINST CONVICTION AND SENTENCE

8.The Appellant only filed Form 101 and 102 to appeal against his conviction and sentence on 24 June 2015, but did not spell out the grounds thereof.  This morning, this Court asked if the Appellant had anything to submit but was told that he did not prepare any, even though the Appellant knew of the hearing date of this appeal some one month ago.  The Appellant maintained that he was confused at the time, and he did not sell any kind of the drugs.  The Appellant was advised by one of his friends to appeal, but the Appellant did not discuss this matter with his duty lawyer after the conclusion of the trial at the Magistracy.  The Appellant also mentioned that the dangerous drugs did not belong to him, and were not in his possession.

9.The Appellant said he has to look after his son, and felt remorseful.  He asked for leniency and hoped that the sentence can be reduced. 

DISCUSSION

Appeal against conviction

10.The Appellant literally could not specify his grounds of appeal.  On the one hand, the Appellant said the police planted the dangerous drugs on him, and claimed that the dangerous drugs did not belong to him.  On the other hand, the Appellant offered to plead to a lesser offence of possession of dangerous drugs. The dangerous drugs in various packages were found on the tea table at which the Appellant was sitting.  The Magistrate listed out 9 points which led to his drawing of the only reasonable inference against the Appellant.  His reasoning, in my view, cannot be flawed.  Apart from drugs, there were 200 empty small plastic bags, an electronic balance and forceps.  The Appellant had 2 mobile phones and a relatively large sum of money on him.

11.In my view, the inference of trafficking in dangerous drugs drawn against the Appellant was the only irresistible one to be made.

12.In gist, I cannot see any valid grounds of appeal against conviction.

Appeal against sentence

13.The Appellant came to Hong Kong in 2006 and is a widower.  He has a 3-year old son who is being taken care of by the Social Welfare Department in Hong Kong.  He is a torture claimant.  The Appellant had 4 previous convictions: 3 of which related to possession of dangerous drugs back in 2008, 2009 and 2013 respectively.  The Appellant was not sent to DATC but was imprisoned for 4 weeks to 6 months respectively.  His latest conviction was that of theft in February 2014 for which he was imprisonment for 6 months.

14.The Magistrate took the view that the presence of more than one type of drugs was an aggravating factor, and there were various kinds of dangerous drugs in this case: ice, cocaine, MDMA, herbal cannabis and cannabis resin.  The Magistrate noted that for the offence of trafficking in ice alone, it would attract an imprisonment term of 2 years.[3]  With the presence of other kinds of dangerous drugs, the Magistrate made an upward adjustment of 3 months, making it a total of 2 years and 3 months.  The Appellant pleaded guilty to the 2^nd charge and the Magistrate used 4 ½ months as the starting point and reduced by 1/3 to 3 months.  Because of the totality principle, the Magistrate ordered the two sentences be run concurrently.

15.The Appellant just said the sentence was too severe and he needed to take care of his son who is being looked after by the Social Welfare Department.

16.In reply, the Respondent invited this Court to use the approaches adopted by the Court of Appeal in HKSAR v Chan Yuk-leong, CACC 318/2013. In that case, the Court of Appeal used three tests, namely, the absurdity test, the conversion test and the ratio test, to cross check if the total sentence for mixed drugs cases is not excessive.  The Respondent attempted to make various calculations in accordance with all 3 tests and came to the view that the ratio test may have been distorted.[4]  But the sentence imposed by the Magistrate ‘passed’ the absurdity test[5] and the conversion test[6].

17.In my view, the Court of Appeal in Chan Yuk-leong did not specify that all 3 tests needed to be followed and adopted across the board.  These tests are just a means to cross check the sentence so imposed by the sentencing court in order to avoid the sentence being too harsh.  In fact, the Court of Appeal specifically remarked,

“Having set out the above tests, we remind ourselves that the court has often warned against slavishly applying a strictly mathematical approach. The purpose of setting tariffs is to avoid any perceptions of injustice arising from disparity in sentences. … As discussed above, the three tests set out above are only methods whereby the court cross-checks whether the total sentence is appropriate.”[7]

18.In normal circumstances, trafficking in ice up to 10g would attract sentence from 3 years to 7 years.  Hence theoretically, it would not be wrong if the Magistrate adopted 3 years, instead of 2 years, as the starting point for the offense of trafficking in Ice only.  In the present case, the Magistrate took a combined approach and increased the sentence just by 3 months to take into account of the various types of the dangerous drugs, even though some are of meager quantity.

19.Taking all factors into account, I consider that the Magistrate was lenient in making the upward adjustment of 3 months only.  I do not consider the sentence so imposed is manifestly excessive at all.

20.The Respondent raised the issue of the forfeiture of the cash of $11,000 odd found on the Appellant.  The disposal order was not disputed by the Appellant’s lawyer.  It was also not raised by the Appellant in this Court today.  I take the view that the Magistrate was entitled to treat this substantial amount of cash relating to the trafficking activity.  The Appellant did not give evidence in court and there is no evidence to suggest otherwise.  In the circumstances, I would not disturb the confiscation of the money.

CONCLUSION

21.For the reasons above said, I dismiss the appeal against conviction and sentence.

Mr Prakash L DARYANANI, Senior Public Prosecutor of the Department of Justice, for the Respondent

The Appellant appeared in person