You pleaded guilty to the 1st charge on the first day of the trial. You admitted that on 26 August 2015, at the staircase, Ground Floor, Fook Kiu Mansion, No 34 Cameron Road, Tsim Sha Tsui, in Hong Kong, you unlawfully trafficked in 3 grammes of cannabis in herbal form.
In respect of the 2nd charge, you pleaded not guilty and were convicted after trial by a jury. You were found by the jury to have trafficked in 2,327.88 grammes of cannabis in herbal form, 1.16 kilogrammes of cannabis resin, 35.30 grammes of a powder containing 0.24 grammes of methylenedioxymethamphetamine and trifluromethylphenylpiperazine, 0.95 grammes of a powder containing 0.3 grammes of cocaine, 39.30 grammes of a solid ocntianing 15.27 grammes of cocaine, and 60.1 grammes of crystalline solid containing 39.8 grammes of methamphetamine hydrochloride, and 12 grammes of ketamine on 26 August 2015, this time at the 1st Floor, Flat 2D, Room 3, the same address as stipulated in the 1st count.
On 26 August 2015, customs officers were conducting patrol on Cameron Road. They had intended to patrol inside Fook Kiu Mansion. Going to the top of that building and patrolling down. When they reached the ground floor of Fook Kiu Mansion, they saw you walking down the stairs to the ground floor. You were intercepted, found on your person in your hand was a white tissue wrapped around a Ziplock bag containing 3 grammes of cannabis. This three grammes of cannabis comprises the drugs mentioned in the 1st charge to which you pleaded guilty to.
As they suspected that the stuff in the bag was drugs, you were asked where did you get it from? You replied the room upstairs on the 1st Floor. You were asked where the key to the room was, and you told them, in your left back pocket. A bunch of keys was then searched and found from your trousers pocket.
You then led the officers up to the 1st Floor to Flat 2D, and inside Flat 2D, to Room 3 within the flat. Keys found from the bunch of keys found from your pocket opened the locked doors of Flat 2D and Room 3. When Room 3 was opened, there was a bunk bed inside, and on the upper bunk was the batch of drugs as mentioned in Count 2, to which the jury found you guilty of.
You admitted that the drugs belonged to you, and that you had bought them from a Pakistani friend for $50,000, and that you would sell them to other people.
Defendant, Mr Luke McGuinniety, your trial counsel, has said there is not much he can say on your behalf in relation to mitigation. You are 29 years of age, and were born in Bangladesh. You came to Hong Kong in 2014, and thereafter, applied for asylum and you are a torture claimant. In view of your application, you are a Form 8 recognizance holder.
You are single, and prior to your coming to Hong Kong, you had a business of mobile accessories in Bangladesh.
Mr McGuinniety tells me that you of a low education level, you only speak Bengali, and your English is very poor.
He has mitigated on the basis that you were used as a gopher or a deliverer of these drugs, and that you were preyed upon in view of your background, that is, the fact that you are in Hong Kong as a torture claimant with little amounts available to you. You were being used by other drug traffickers to commit these wicked offences.
On the evidence before the jury, I cannot accept that you were only a deliverer or gopher. It appears, at least, on your admission, that the drugs belonged to you, and that you had purchased them for $50,000.
I accept that, however, at the time, you appear to have been delivering very small amount of the drugs but there was a great quantity of drugs kept in that room.
This room was what can be said to be a supermarket of different types of drugs. There were at least six types of drugs found in those premises, as mentioned in the charge. The value of those drugs was admitted at the trial to amount to almost HK$400,000.
In view of the quantity and the value, and given your background as a recognizance holder in Hong Kong, this was a particularly lucrative operation.
The cases to which Mr McGuinniety has submitted to me in respect of sentencing in those various types of drugs are appropriate and proper. In this case before me, clearly, there is a cocktail of drugs. That is, of course, an aggravating factor.
A further aggravating factor in this case is the fact that you are a Form 8 holder on recognizance committing a very serious offence in Hong Kong, to which the courts have also said this is an aggravating factor warranting an upward adjustment of the starting point. Those cases I referred to are HKSAR v Shah Syed Arif CACC 298/2015, HKSAR v Sandagdorj [2014] 1 HKC 206.
There is, as Mr McGuinniety says, little to be said in mitigation on your behalf.
I now turn to the appropriate sentence to be applied in sentencing you for these drugs.
For Charge 1 of the 3 grammes of herbal cannabis, that is a very small amount of drugs, and for that charge, I shall sentence you to 6 weeks’ imprisonment.
I turn then to the 2nd charge, which is the charge you are convicted of after trial by the jury. As there is a cocktail of drugs, I shall take a combined approach. In taking the combined approach, the most serious type of drugs in this case is that of “Ice”. I shall therefore convert the other drugs into “Ice” and sentence you as though all the drugs were “Ice” and arrive at the appropriate sentence.
I turn then first to the initial drugs mentioned in the charge, that is, 2,327.88 grammes of cannabis in herbal form. The appropriate authority for sentencing in cannabis is that of Tuen Shui Ming, Application for Review, number 12 of 1994. It is stated there that herbal cannabis is four times less potent than that of cannabis resin, therefore I would convert the herbal cannabis to cannabis resin by dividing that amount by four, that would equate to 481.97 grammes of cannabis resin.
The next quantity of drugs is 1.16 kilogrammes of cannabis resin, and following the guidelines in Tuen Shui Ming, that is an amount over the last bracket of over 9,000 grammes, 4 years and upwards. I would add the two amounts of cannabis resin together, that is, 481.97 grammes of cannabis resin and 1,160 grammes, and that would make a total of 1,741.97 grammes of cannabis resin.
Taking that amount of cannabis resin, an appropriate starting point for that amount, in my view, would be one of 4 years and 6 months’ imprisonment. If that amount was converted to “Ice”, given the guidelines in Tam Yi Chun, that would equate to approximately 4 grammes of “Ice”.
In dealing with the next quantity of drugs, that is, 0.24 grammes of methylenedioxymethamphetamine, which, as stated in Hii Siew Cheng, is commonly referred to as Ecstasy, and traces of trifluromethylphenylpiperazine, which, as stated in HKSAR v Ramirez Beltran Claudia Lorena CACC 180/2014, the short name for this being TFNPP, and that drug also being equated equivalent to that of Ecstasy. Given the very small amounts of Ecstasy, I would not take that into account for the purposes of sentencing.
I turn now to the next drug, which is that of cocaine. The total quantity of cocaine in the charge is that of 15.57 grammes of cocaine. In following the trafficking guidelines in Lau Tak Ming, an appropriate sentence after trial for that amount of cocaine would be one of 5 years and 3 months’ imprisonment.
In turning now to the “Ice”, there was 39.8 grammes of “Ice”. In following the trafficking guidelines laid down in Tam Yi Chun, starting point after trial for that amount is one of 9 years’ imprisonment.
And the last type of drug in the charge is that of 12 grammes of ketamine. In following the trafficking guidelines laid down in Hii Siew Cheng, a starting point will be that of 4 years’ imprisonment.
In converting the cocaine to “Ice”, that would be an amount approximately of 6 grammes of “Ice” and converting the ketamine to “Ice”, that would be an amount of about 3 grammes of “Ice”. Therefore, the total amount of “Ice”, if all the other drugs were converted to “Ice” would be 52.8 grammes of “Ice”, and that is the amount of drugs to which I base a starting point. In following Tam Yi Chun, the appropriate starting point would be one of 9 years and 6 months’ imprisonment.
As mentioned earlier, there are aggravating factors in this case. I consider this a serious offence, and you being a torture claimant, the starting point is enhanced by a further 9 months’ imprisonment, that would make a sentencing point of 10 years and 3 months’ imprisonment. I would further enhance that sentence by 3 months for the cocktail of drugs.
You are therefore sentenced to 10 years and 6 months’ imprisonment.
As mentioned, there are no mitigating factors of which to reduce the sentence.
(Discussion with counsel)
Charge 1 is to run concurrent to Charge 2.
(Discussion with counsel)
That 6 weeks’ imprisonment in respect of Charge 1 is after plea. So the total you will serve is that of 10 years 6 months’ imprisonment.