HKSAR v. Khan Amjed and Another

DCCC 1057/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1057 OF 2016

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Reasons for Sentence

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1.The 1st defendant was convicted of Charges 1 and 2 after trial. Charge 1 involved 18.03 grammes of cannabis in herbal form and 2.74 grammes of “Ice”. Those drugs were found on his person outside his home. Charge 2 involved 89.12 grammes of cannabis in herbal form found hidden in a tin in the refrigerator inside his home.

2.The 2nd defendant was convicted after trial of Charge 3.  She was convicted of trafficking 5.8 grammes of cannabis. That cannabis was found in a plastic bag in her handbag, and also two pellets of cannabis resin weighing 11.55 grammes were subsequently found in her bra.

3.The 1st and 2nd defendants are married.

4.The defendants did not deny possessing all the drugs for these three charges but denied possessing the drugs for the purposes of trafficking.  I convicted the defendants after trial.  I rejected their evidence that they both gave.  I found the prosecution proved beyond reasonable doubt the elements of the charge.  I gave my reasons in full in my verdict.  I do not intend to repeat them.  I found the prosecution proved on an accumulation of circumstantial evidence able to draw the irresistible inference they were in possession for the purpose of trafficking. 

5.I did not believe the defendants had been on the day before their arrest out in Tsim Sha Tsui buying their monthly shop of dangerous drugs for their own consumption.  I did not believe they were arrested as they left home on their way to Tuen Mun for three or four days to stay at a friend’s for the purpose of consuming drugs in their possession for their aches and pains. 

6.The 1st defendant was not a man with a clear record.  He was convicted in 2003 and 2005.  In 2003, when he was 23 years old, he was convicted of three trafficking convictions and one possession-of-dangerous-drugs conviction in the same court appearance.  Two years later, in 2005, he was convicted of two trafficking convictions and two possession-of-dangerous-drugs convictions in the same court appearance.  He has a total of five previous for trafficking in dangerous drugs.  He is now 36 years old.  The 1st defendant was born in Hong Kong. 

7.The 2nd defendant is 34, and I have been told her marriage to the 1st defendant was arranged.  She has a clear record. 

8.Both defendants suffer from serious health conditions.  The 1st defendant is a diabetic amongst other ailments.  His diabetes is exacerbated by his inability to comply with a drug regime to control it.  This began some five odd years ago.  I have seen medical reports during the course of the trial as well as physical manifestations of the diabetes.

9.The 2nd defendant has recently had a spine operation.  She suffers from sciatica because of a prolapse of a disc.  She had an operation in April, and from medical reports I have seen today, she does not seem to be recovering well.  During the course of the trial, she sat in a wheelchair.  She can walk with a frame but still prefers and feels safer in a wheelchair.

10.I was given on the last occasion after conviction three urine tests done several days apart.  It shows no trace of any “Ice” or cannabis in her system.  She now relies on Panadol for pain relief.

11.The 1st defendant after conviction was remanded in custody and was subject to a urine test at Lai Chi Kok. That urine test conducted on 29 June shows he was positive for amphetamine and cannabis.  The 1st defendant said during his evidence that he took “Ice” and cannabis during the course of the trial.  There was evidence of “Ice” bongs in a cupboard in their home.

12.These charges are dated August 2016.  The urine tests took place some 10 months later. 

13.More importantly, I found that the defendants, on their own evidence, were on the way out of their home with the dangerous drugs on them.  They said for their own consumption.  I found for the purposes of trafficking.  I found that the bags of cannabis, those on the 1st defendant and the 2nd defendant were of almost equal weight.  The “Ice” was in one bag only.  The 1st defendant did not have an “Ice” pipe on him.  The 2nd defendant’s two pellets of cannabis resin almost weighed the same.  I do not believe that the “Ice” or the cannabis in herbal form or resin was for the purpose of consumption or even part consumption.  My finding was that they were for the purposes of trafficking.  So as far as sentencing is concerned, I sentence on the basis that the drugs were all for trafficking.

14.The 1st defendant may well be a consumer but those drugs that were taken out of their home on that day I do not find were for self-consumption.

15.The Court of Appeal have set down guidelines for trafficking drugs.  For “Ice”, I have referred myself to the authority of the Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125 as corrected by the authority of HKSAR v Capitania [2004] HKCU 926.  The Court of Appeal found where up to 10 grammes of “Ice” is trafficked, between 3 to 7 years’ imprisonment is appropriate.  Here, in Charge 1, the quantity of “Ice” is 2.74 grammes.  Mathematically, according to that authority, 2.5 grammes should attract a 4 years’ starting point. 

16.As far as cannabis is concerned, in the authority of Attorney General v Tuen Shui Ming & Another [1995] 2 HKC 798, where under 2,000 grammes of cannabis resin is trafficked, up to 16 months’ imprisonment is appropriate.  The Court of Appeal accepts that resin is four times stronger than cannabis in a herbal form. 

17.The resin we have here is the drugs in Charge 3.  11.55 grammes of resin in Charge 3 would equate to just over 46 grammes of herbal cannabis.  The 2nd defendant also had 5.8 grammes of herbal cannabis in her handbag.  One could say she had 52 grammes of herbal-cannabis equivalent or the equivalent of 13 grammes of cannabis resin; which could be considered a small amount.

18.The 1st defendant in Charge 1 faces a charge with two types of drugs.  The court would either consider a combined approach or an individual approach to sentencing.  I take a combined approach. I find that to be the most fair and the most common-sense approach.  I look at the starting point for the most serious drug, meaning the most potent drug, and that here is clearly the “Ice” and then take into account any significant quantities of other less serious drugs.  I will repeat here that with Charge 1, it is 18 grammes of cannabis in herbal form.

19.For the 1st defendant, I take into account mitigation I have heard on his behalf, his background that I heard during the course of the trial and the fact it is not his first trafficking-in-dangerous-drugs conviction.  I also take into account the facts of this case and the drugs involved, and lastly the Court of Appeal guidelines, and for Charge 1, the combined approach.

20.For Charge 1, taking the “Ice” into account, I take a starting point of 3 years and 6 months.  Although the quantity of cannabis in herbal form is not a significant amount, I will add to that starting point 1 month to reflect it.  Therefore, for Charge 1, the starting point is one of 3 years and 7 months.

21.For Charge 2, I take into account the quantity of herbal cannabis found in the fridge and take a starting point of 4 months. 

22.For the 2nd defendant, for Charge 3, I take into account her previous clear record, I take into account the quantity of drugs is not a large amount.  I take into account her poor health condition.  However, trafficking is a serious offence, and trafficking is an excepted offence.  Excepted offence means that a suspended sentence is not appropriate.  And in my view, a fine is not appropriate for a trafficking offence but I do not ignore the health condition of the 2nd defendant.  I will impose a short and sharp sentence.  I impose a sentence of 7 days’ imprisonment.  The 2nd defendant will be sentenced to 7 days’ imprisonment.

23.For the 1st defendant, I see no reason to consider any further discount.  For Charge 2, I will take into account the totality principle.  I will order that 1 month of Charge 2 be served consecutively to Charge 1.  That means a total sentence of 3 years and 8 months’ imprisonment.