HKSAR v. Modibo Diarra

HCMA 391/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 391 OF 2017

(ON APPEAL FROM ESCC 1073 OF 2017)

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REASONS FOR JUDGMENT

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1.At the hearing of the appeal I dismissed the appeal. Below are my reasons.

2.The Appellant was charged with possession of a dangerous drug namely 0.71 grammes of a powder containing 0.35 grammes of cocaine and 0.78 grammes of cannabis in herbal form, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

3.On 23 June 2017, he pleaded guilty to the charge at the Eastern Magistracy before Principal Magistrate Bina Chainrai (“the magistrate”).  On 7 July 2017 he was sentenced to 6 months’ imprisonment.

4.The Appellant now appeals against his sentence.

Brief Facts admitted by the Appellant

5.Shortly before 0018 hours on 6 April, 2017, a police officer spotted the Appellant acting furtively outside the rear lane of No. 41, D’Aguilar Street in Central during an anti-dangerous drugs operation.   He was therefore intercepted for inquiry. 

6.Upon search the police officer found the dangerous drugs (later confirmed to be the amount stipulated in the charge) inside the Appellant’s left sock.  The Appellant was subsequently arrested.

7.Under caution, in the presence of the French interpreter, the Appellant said that the drugs were for his own consumption.

Mitigation

8.The Appellant was 29 years of age.  He is a torture claimant seeking non-refoulement.  He is a Form 8 recognisance holder.  His counsel advanced in mitigation that the Appellant resorted to taking drugs because he was under a great deal of stress at the time of his arrest as he could not locate his wife and children who were in Mali.

Reasons for sentence

9.The magistrate took into account the fact that the Appellant had 3 previous convictions all of which were related to drugs. One conviction for possession of dangerous drugs in 2015 and two for trafficking in dangerous drugs in 2015 and 2016.  She did not consider that a non-custodial sentence would be appropriate.  

10.She considered the contents of the Drug Addiction Treatment Centre Report (DATC).  The opinion of the medical officer was that the Appellant was drug dependent but because of his immigration status, the Appellant being a Form 8 holder it might not be practical to administer to him the one-year statutory supervision after the treatment period in the DATC, which is part and parcel of the whole of the drugs abstinence programme and therefore treatment in DATC was not recommended. 

11.The magistrate referred to the relevant case of Mok Cho Tik [2001] 1 HKC 261 where Stock JA said:

“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. 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.”

12.The magistrate concluded that the quantity of drugs could not be described as ‘very’ small.  There were two different types of drugs.  She took a starting point of 9 months’ imprisonment and discounted it by one-third and sentenced the Appellant to 6 months’ imprisonment. 

Grounds of Appeal

13.The appellant was not legally represented at this appeal.  He advanced the followinggrounds of appeal:

(1)   the sentence was too severe;

(2)   there was evidence that he used the drugs (the cocaine and cannabis) mixed in a cigarette which was in an open plastic bag;

(3)   although there were two types of dangerous drugs there was no basis to enhance the sentence as he was using both in the cigarette;

(4)   the quantity of dangerous drugs was too small to increase the sentence due to the “latent risk factor”;

(5)   in respect of being a persistent offender, he had seen offenders with worse criminal records than his getting lower sentences than his on this occasion;

(6)   he disagreed with the magistrate stating that he is only relying on International Social Service.  He said he receives US$1,600 from his family each month before he came to Hong Kong;

(7)   he alleged he did not get a chance to talk to the learned magistrate before sentencing; and

(8)   no time was deducted for his time spent in administrative detention.

Discussion

14.The appellant was legally represented by Counsel assigned to him by the Duty Lawyer Service[1] in his appearances before the magistrate.

15.In consideration of the grounds of appeal advanced, there is no merit or relevance in grounds two and six. 

Ground 1

16.The appellant contends that the sentence was too severe.  At the appeal hearing, he had nothing further to add. 

17.The starting point for mere possession of dangerous drugs which a bone fide user would normally have in his possession should be in the range of 12 to 18 months see Mok Cho Tik.  In the passage quoted by the magistrate above she was aware that despite the normal range of 12 to 18 months imprisonment it did not exclude imposing sentences of lesser terms for very small quantities where the circumstances warrant.

18.For possession of a small amount of cocaine mixed with another dangerous drug a starting point of 9 months’ imprisonment was held to be appropriate see: HKSAR v Ramirez [2015] 1 HKLRD 966.  The Court there also referred to Mok Cho Tik. 

19.In the present case the magistrate adopted a starting point of 9 months and discounted this by one-third to reflect the plea of guilty.  I can find no error in the sentence of 6 months’ imprisonment imposed by the magistrate.  It is neither wrong in principle nor is it manifestly excessive. 

Grounds 3, 4 and 5

20.Unlike trafficking in dangerous drugs, the possession of two different types of dangerous drugs is not an aggravating factor see Ramirez at paragraph 19 of the judgment. 

21.It is clear from the magistrate’s reasons she did not take into account in sentencing, either the latent risk factor of onward distribution, or enhancement for the two types of drugs or the fact that the Appellant was a persistent offender to increase the sentence.   

Ground 7

22.The Appellant was legally represented at the sentence on both hearing dates of 23 June and 7 July 2017.  The Appellant’s Counsel advanced mitigation on his behalf.   

Ground 8

23.The Appellant sought to have his time spent in administrative detention deducted from his present term of imprisonment.  This request was not raised before the magistrate.  Mr Daryanani Senior Public Prosecutor informed the court that the Appellant had spent 203 days in detention prior to being sentenced and that no discount from the starting point sentence was given in the previous cases. 

24.Pursuant to section 67A of the Criminal Procedure Ordinance Cap 221 the offence must relate to the administrative detention before any time spent in administrative deduction is granted.   In this case it is not related to the offence and therefore the Appellant is not entitled to any reduction under that section. 

25.Although no discount is applicable under section 67A, I see no reason to exercise my discretion to make any deduction for the administrative detention to address any injustice or unfairness to the Appellant. 

Conclusion

26.In the circumstances, the appeal against sentence was dismissed.

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

The Appellant, acting in person, present.