HKSAR v. Husain Saddam

DCCC 1156/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1156 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to the following charges:-

1^st charge – Trafficking in dangerous drugs, namely 6.87 grammes of methamphetamine hydrochloride (“Ice”), 2 capsules containing 0.14 grammes of methylenedioxymethamphetamine (“Ecstasy”), 4 tablets containing 0.01 gramme of methamphetamine and 0.41 gramme of Ecstasy, 9 capsules containing 22 milligrammes of alprazolam, 675 tablets containing 0.33 milligrammes of alprazolam, 52.3 grammes of cannabis in herbal form, 5.42 grammes of cocaine and 37.78 grammes of cannabis resin.

2^nd charge – Trafficking in a dangerous drug, namely 489 grammes of cannabis in herbal form.

SUMMARY OF FACTS

1^st charge

2.In the small hours on 29 July 2016, police officers carried out an operation and entered into the premises at Room 5A, 5^th Floor, No 23A Lock Road, Tsim Sha Tsui, Kowloon, Hong Kong (“Location 1”) and found the defendant inside the premises.  Upon search, the dangerous drugs set out in the 1^st charge were found inside a shoe cabinet adjacent to the entrance door of the premises.  As a result, the defendant was arrested.

2^nd charge

3.In the small hour on the same day, another team of police officers carried out another operation and arrived at the premises at Room 912, 9^th Floor, Hai Phong Mansion, Nos 53/55 Haiphong Road, Tsim Sha Tsui, Kowloon, Hong Kong (“Location 2”).  As no one answered the door, the police broke open the door and entered the premises.  No one was found inside the premises.

4.Upon search, the police found a packet containing 489 grammes of herbal cannabis in a nylon wardrobe near the entrance.  Further, a plastic water bottle with the defendant’s left middle fingerprint was found on the ground next to the toilet door.

Subsequent investigation

5.In a subsequent video-recorded interview, the defendant admitted under caution that:-

(a) He came to Hong Kong from India in 2014 and applied for non-refoulment claim in August 2014;

(b) He did not have a fixed abode in Hong Kong but he lived in Location 1 where his friends were residing. He used to live at Location 2 as well;

(c) He had no job in Hong Kong and received ISS allowance for daily expenses;

(d) Location 2 was rented by his friend and he had no key to access the place. He would visit Location 2 when his friend was there;

(e) The dangerous drugs seized in Location 1 and Location 2 belonged to him;

(f) He found the dangerous drugs about 3 weeks ago inside a bag in a rubbish bin in the Kowloon Park;

(g) He brought the dangerous drugs back to Location 1 and started to consume them. He kept the dangerous drugs in a shoes cabinet;

(h) He brought the packet of cannabis to Location 2 and stored in a nylon wardrobe and his friend did not know about it;

(i) All the dangerous drugs seized in Location 1 and Location 2 were for his own consumption.

6.The total market value of the dangerous drugs seized in this case is estimated to be around HK$57,318.20.

MITIGATION

7.The defendant is now 26 years of age and single.  He was born in India and received secondary school education.  He came to Hong Kong in 2014 as a visitor and then stayed in Hong Kong as an Asylum seeker with a Form 8 recognizance.  He has one previous conviction of possession of a dangerous drug and was sentenced to 14 days’ imprisonment.  Because of his status, the defendant is not allowed to work in Hong Kong and he is relying on the assistance of ISS.

8.Defence submitted that the defendant is not a drug addict anymore.  He is very remorseful and pleaded guilty at the earliest opportunity.  Defence urged the court to give the defendant a full one-third discount and to order the sentence to be served concurrently.  All in all, defence asked the court to treat the defendant leniently.

Discussion

9.As the 1^st charge involves different types of drugs, after considered all the circumstances of the case, I am of the view that the “combined approach” should be adopted in sentencing the defendant:  HKSAR v Yip Wai Yin and anor [2004] 3 HKC 367.

10.The relevant tariffs for the drugs involved in the 1^st charge are as follow:-

(a) Ice: Up to 10 grammes – 3 to 7 years (AG v Ching Kwok Hung [1991] 2 HKLRD125);

(b) Ecstasy: Up to 1 gramme – Below 2 years and within discretion of court (Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1);

(c) Alprazolam: No specific guideline. Potency should be similar to methaqualone and midazolam. Tariff for methaqualone: below 500 grammes or 2000 tablets – Below 6 months and within discretion of court (The Queen v Chan Chi-man, unrep, CAAR 19/1986);

(d) Cannabis resin: Under 2,000 grammes – Below 16 months (AG v Tuen Shui-ming and Anor [1995] 2 HKCLR 129). For herbal cannabis, it was indicated by the Court of Appeal that cannabis resin has concentration about four times higher than herbal cannabis.

11.Considered the potency and quantities of the drugs involved in the 1st charge, 6.87 grammes of ice will lead to the highest sentence and therefore should be the base of the sentence.  Considered all the circumstances, I am of the view that 5 years is the appropriate starting point for 6.87 grammes of ice.  For the other types of the drugs involved in the 1st charge, other than cocaine, the rest are of very small amount and are insignificant in terms of sentencing.  Considered all the circumstances, for the 5.42 grammes of cocaine, I will make an upward adjustment of 6 months to the overall starting point.  For the other types of drugs, I make no further adjustment.

12.Therefore, the overall starting point for the combined drug of the 1^st charge should be 5 years and 6 months.  After cross-checking with the various tests as set out in HKSAR v Chan Yuk Leong, unrep, CACC 318/2013, I am satisfied that the above starting point for the 1^st charge is appropriate.

13.For the 2^nd charge, according to Tuen Shui Ming for herbal cannabis, a discount of up to a year should be given from the tariff for cannabis resin.  All things considered, the appropriate starting point for the 2^nd charge should be 3 months’ imprisonment.

14.The defendant pleaded guilty to both charges at the first available opportunity and is entitled to receive a full one-third discount.  Therefore, for the 1^st charge, the defendant is sentenced to 3 years and 8 months’ imprisonment.  For the 2^nd charge, he is sentenced to 2 months’ imprisonment.  I order the sentences to be served concurrently so the total sentence is 3 years and 8 months’ imprisonment.