HKSAR v. Butt, Khalid Javed

HCMA 580/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 580 OF 2016

(ON APPEAL FROM KCCC 3329 OF 2016)

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REASONS FOR DECISION

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1.The appellant pleaded guilty to one charge of possession of dangerous drugs before a magistrate on 12 October 2016 and was sentence to six months’ imprisonment.  His appeal against sentence was allowed on the day of the hearing of the appeal.  These are the reasons.

Facts

2.At around 5:52 pm on 12 April 2016, Police officers taking part in an anti-dangerous drugs operation at Chungking Mansion spotted the appellant acting furtively outside a shop on the ground floor of the Mansion and proceeded to intercept him for enquiry.

3.When Police officers disclosed their Police identity and requested for the appellant’s proof of identity for inspection, the appellant threw a paper cup into a rubbish bin nearby.  Upon search, a piece of tissue containing a transparent re-sealable plastic bag with 15 packets (consisting of plastic wrappings) containing a total of 17.52 grammes of cannabis resin was found inside the paper cup.  The appellant was arrested.

The magistrate’s Reasons for Sentence

4.The magistrate adopted a starting point of 6 months’ imprisonment, which was then enhanced by 3 months for the latent risk of dissemination of the cannabis resin.  The appellant was sentenced to 6 months’ imprisonment after the magistrate granted him the full one-third discount for his guilty plea.

5.The appellant is 37 and an asylum seeker.  He has one previous conviction for trafficking in cannabis in November 2015, for which he was sentenced to three months’ imprisonment.  There the appellant was found passing a bag of plastic packet containing cannabis to a woman in Jordon MTR Station who gave the appellant $500 in return.

6.The Drug Addiction Treatment Centre (“DATC”) report called for stated that the appellant was not a drug dependant and was therefore not suitable for admission to the DATC.

7.The magistrate explained her sentencing process as follows:

“10.  There are no sentencing guidelines for possession of ‘cannabis resin’.

11.  Cannabis resin is not a hard drug. However, 15 packets containing a total of 17.52 grams of cannabis resin is neither a very small or very large amount of cannabis resin. I also note that cannabis resin is more potent than the cannabis in herbal form. An upward adjustment in sentence is appropriate. In my view, it is certainly not the policy of the courts in Hong Kong to go soft on dangerous drug offences involving cannabis resin. Therefore I adopted a starting point of 6 months imprisonment.

12.  In HKSAR v Mok Cho Tik, CACC 165/2000, the Court of Appeal held that:

‘17.  ... The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking, and of course the quantity of drugs. The full circumstances of the risk must be assessed.’

13.  The defendant has a previous conviction in 2015 for trafficking in dangerous drugs. The fact as revealed by the DATC report that he is not a drug dependant. I have serious doubt as to whether he is a genuine drug user.

14.  Moreover, the defendant is a recognizance holder and dependant of the International Social Service. He is unemployed. According to the defence, the defendant relied on the humble amount of cash allowance of $200 for his living. One would just wonder how the defendant could have spent $800 on the cannabis resin in one go.

15.  According to the charge sheet, the defendant resides in Yau Ma Tei. He was found by the police at the ground floor of Chungking Mansion which is not his place of residence. Given Chun King Mansion is in the heart of Nathan Road, the actual risk of 15 packets of the drugs being disseminated in society was high. I have to consider the latent risk in particular. Therefore I enhanced the sentence for 3 months.

16.  As such, the total sentence is 9 months.  The defendant pleaded guilty.  Given the full credit for the plea of guilty, the sentence is so reduced to 6 months imprisonment.”

Grounds of appeal

8.The appellant’s ground of appeal is basically that the six-month starting point adopted was manifestly excessive and that the resulting enhanced sentence of nine months’ imprisonment is manifestly excessive.

9.The appellant also argued that there were insufficient grounds for the magistrate to find that there was a latent risk of dissemination.

Discussion

10.According to the respondent’s calculation, had the appellant been convicted of trafficking in the 17.52 grammes of cannabis resin and not for simple possession, applying the relevant sentencing tariff as set out in the case of AG v TUEN Shui-ming & another [1995] 2 HKC 798, the likely sentence should be around 4.2 days after adopting a strict mathematical approach.

11.In the case of HKSAR v Warsi Amir Sohail, HCMA 555/2014, the appellant was convicted after trial of one charge of simple possession of 140.97 grammes of cannabis resin and 51.22 grammes of cannabis in a herbal form.  On appeal, the original sentence of six months’ imprisonment was ordered to be set aside and substituted with a sentence of 21 days’ imprisonment.  The learned Deputy High Court Judge Tallentire remarked that given the quantity and nature of the narcotic contents, six months’ imprisonment would have been a robust sentence even for trafficking in that same amount.

12.It is conceded by the respondent that the starting point of six months’ imprisonment in our present case is manifestly excessive.  I agree.

Latent risk enhancement

13.The magistrate identified the following factors as being indicative of a latent risk of dissemination of the drugs that the appellant possessed: pervious conviction in 2015 for trafficking in cannabis resin; the appellant is a recognizance holder and dependent on the International Social Service; he was unemployed and relied on a $200 cash allowance; the cannabis resin in this case cost $800; the appellant was found in possession of the drugs outside Chungking Mansion, which was not his place of residence; and lastly the appellant is not a drug dependant.

14.Even though the magistrate adopted an incorrect starting point, I find that she had correctly identified the factors relating to the circumstances of the appellant’s possession of the drugs.  Based on those factors, I find that the magistrate had correctly found that there was a latent risk of dissemination of the cannabis resin that was in the possession of the appellant.

15.Be that as it may, given the huge difference between the starting point adopted by the magistrate and the starting point suggested by the respondent, any enhancement that is applicable to the correct starting point would not have made a big difference to the final sentence.

Ruling

16.For the reason that the starting point adopted by the magistrate was manifestly excessive, I allowed the appellant’s appeal against sentence and set aside the original term of six months’ imprisonment.

17.Given that the appellant had already been in custody for 87 days (close to three months) as at the hearing date, I find that even if we adopted the tariff sentence for trafficking mentioned above and enhanced the sentence by 50%, the appellant would still have already served his sentence in full.

18.I, therefore, ordered that his sentence be substituted with a sentence that would allow for his immediate release.

Ms LAM Hiu Man, Human, Public Prosecutor of Department of Justice, for the respondent

Mr Hanif Mughal, instructed by M/s B. Manek, for the appellant