HKSAR v. Malik Kamran

DCCC 907/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 907 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.As far as sentence is concerned, the defendant has been convicted after trial of an offence of trafficking in a dangerous drug.

2.As far as the facts of the case are concerned, salient fact the defendant was found in possession of all the drug in a public place divided between a box that he was carrying and a small amount in his pocket.  The defendant admitted at the time the drugs were for his own consumption.

3.As far as the defendant’s antecedents are concerned, he is aged 40 and single.  It says, contrary to the admitted facts, that he was born in India in 1976.  We know that he is here as under the asylum seeker programme as a Form 8 holder issued by the Department of Immigration, would be reliant on ISS were he to receive the money from it.  He is naturally of course unemployed in Hong Kong, said to be in good physical health, and it says in his antecedent statement he takes dangerous drugs.

4.The defendant’s criminal record shows that he has two previous convictions of possession of a dangerous drug: in 2014 receiving a sentence of 8 months’ imprisonment, in 2016 receiving another sentence of 8 months’ imprisonment.  

5.The approach to trafficking in this drug is set out in guideline sentencing, and the guideline for methamphetamine hydrochloride, “Ice”, is as follows: up to 10 grammes of the drug, a sentence of between 3 to 7 years’ imprisonment.

6.In this case, we are dealing with 8 grammes of the drug which would be, following the guideline, a sentence of imprisonment in the region of 6 years’ imprisonment, a starting point for sentence in the region of 6 years’ imprisonment.  

7.In mitigation, the following factors are prayed in aid.  Firstly, the defendant has been co-operative in his trial in that he has agreed the prosecution case, admitting his possession of the drug; and secondly, it is said that as a consumer of the drug and as a person who is addicted to the drug that he would consume a significant portion of the drug himself. That means were that the case, he would be eligible for a discount from the normal starting point ranging between 10 to 25 per cent of the starting point.  The authority for that is found in HKSAR v Chow Chun Sang which is at CACC 135 of 2011. 

8.Of late, the Court of Appeal has further confirmed that for this deduction to be appropriate, the court must be of the view that the amount of drug consumed by the defendant would be a significant portion of the drug he is found in possession of for the purposes of trafficking in it.  That exercise is an exercise of determining fact but of course must involve a speculative element because the drugs have not been consumed by the defendant and his consumption of them will depend on a number of factors which cannot really be assessed by the court in the sentencing process because his arrest by the police in possession of the drug interfered with how he would himself have disposed of those drugs.

9.The salient factors I have in relation to this are the defendant’s admitted consumption of the drug himself in his cautioned statement and his evidence in court; secondly, the fact that he has previous convictions in 2014 and 2016 for possession of dangerous drugs for which he was sentenced to imprisonment.  All these factors are suggestive that the defendant is a consumer of the drug for a substantial period and would be a person who would fund his consumption of the drug through his sale of it.

10.Taking all these factors into consideration, I consider that for this defendant, it is appropriate to permit a discount from the original starting point to reflect his consumption of what would I anticipate be a significant portion of the drug himself.  This deduction can range between 10 to 25 per cent.   

11.In this case, I think the appropriate deduction is in the region of what would be 15 per cent which would be a deduction of 12 months.  So what I shall do is impose a final sentence, after deduction for that factor and the other factors put forward in mitigation, of 5 years’ imprisonment.