HKSAR v. Hussain Malik Majed

DCCC 583/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 583 OF 2017

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Reasons for Sentence

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Charges

1.The Defendant (“D”) pleads guilty to the following charges:

(1) trafficking in a dangerous drug (1^st Charge);

(2) driving without a valid driving licence (2^nd Charge);

(3) driving an unlicensed vehicle (3^rd Charge);

(4) using a motor vehicle without third party insurance (4^th Charge).

Facts

2.D was charged in TMCC 199/2017 for being found in possession of 2.1g cocaine and 6.9g ketamine on 30 November 2016. He was released on court bail, but failed to appear in court on 20 January 2017 and a warrant of arrest was issued against him. He was sentenced to DATC in TMCC 199/2017 on 11 April 2017 upon being arrested in the present case.

3.On 28 March 2017 at around 11:50 p.m., the police intercepted D near a bus stop on Wong Yin Street, Tuen Mun, New Territories, Hong Kong, who was sitting on the driver's seat of a private vehicle bearing registration mark TU 2645 ("V"). He was alone in the car and the engine was running. The police approached him, revealed their police identities and indicated their intention to search him. He immediately tried to flee but was subdued. 

4.Upon body search of D, 9 transparent re-sealable plastic bags containing a total of 13.44g of solid containing 12.02g of cocaine (“E1”) were found in his trouser pocket.

5.Upon search of V, 30 empty transparent re-sealable plastic bags were found inside the armrest storage box, and 1 electronic scale was found inside the glove compartment.

6.After arrest and caution, D admitted that the "coke" belonged to him and was for self-consumption.

7.At the time of arrest, D had 1 mobile phone with a SIM card, and cash of HK$3,390. He was also in possession of a learner's driver's license which expired on 10 August 2016.

8.Subsequent check revealed V was unregistered and without third party insurance at the material time.

9.D was arrested and cautioned, under which he confessed he did not have a valid licence for driving V, and both the registration and insurance of V had lapsed.

10.Under caution in a subsequent video-recorded interview, D admitted, inter alia, the following:

(1) coke meant cocaine;

(2) he purchased El from someone known as Ah Keung for HK$6,000;

(3) he planned to inhale the cocaine at the spot where he was arrested because the spot was quiet with few people;

(4) the 30 empty transparent re-sealable plastic bags found in V were to be used to limit his intake of the cocaine;

(5) the electronic scale found in V was to be used to weigh the cocaine he would consume;

(6) he purchased V through the internet at HK$9,000, but he did not purchase insurance nor register V with the Transport Department.

11.The estimated street value of El in March 2017 was HK$17,297.

12.At the material time, D was in possession of the dangerous drug seized for purpose of unlawful trafficking. 

Mitigation

13.He is 25 years of age, of junior education level.  He lives with his single mother and 3 younger siblings.  He last worked as a casual transportation worker. 

14.He had 3 records for possession of dangerous drugs.  The last was TM199/2017 for which he was sentenced to DATC.  He was released in September 2017. 

15.On the one hand his counsel Mr. Wong submits that his Tuen Mun dangerous drug possession case sentenced in April 2017 could have been adjourned for sentence together with the present case today so that the total sentence could have been lower. On the other hand Mr. Wong agrees that he had committed the present set of offences while on bail for the Tuen Mun case.  The net effect is for the former factor to offset the latter factor, resulting in non-reduction and non-aggravation.  

Sentencing considerations

16.The sentencing guidelines for trafficking in 10g – 50g of cocaine indicate 5 – 8 years’ imprisonment (Attorney General v Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLR 370). 

Sentencing the Defendant

17.I consider 5 years as the starting point for the 1^st Charge.  It is plausible that a part of the drug seized was for self-consumption as he claimed to the arresting police officer.  For this I lower the starting point by 10%.  From 4 years 6 months I give him one-third discount for his timely plea of guilty, the sentence is 3 years. 

18.I take 3 weeks as the starting point for the 2^nd and the 3^rd Charges alike.  I give him one-third discount for his timely plea of guilty, the sentence is 2 weeks each.

19.I take 3 months as the starting point for the 4^th Charge.  I give him one-third discount for his timely plea of guilty, the sentence is 2 months.  I order disqualification for 18 months.  That includes learner driving licence. 

20.I adjust the total sentence as follows:

(1) 3 years to be served for the 1^st Charge;

(2) 1 week of the 2^nd Charge consecutive to other charges;

(3) 1 week of the 3^rd Charge consecutive to other charges;

(4) sentence for the 4^th Charge concurrent with other charges.

21.The overall sentence is 3 years 2 weeks.