HKSAR v. Hossain Abir

HCMA 553/2017
[2018] HKCFI 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 553 OF 2017

(ON APPEAL FROM ESCC 1790 OF 2017)

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Before: Deputy High Court Judge C P Pang in Court

Date of Hearing: 5 January 2018

Date of Reasons for Judgment: 19 January 2018

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R E A S O N S   F O R   J U D G M E N T

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1.MD Ali Akber Morad was the 1^st defendant and the appellant was the 2^nd defendant in ESCC 1790/2017.  They were jointly charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

2.The 1^st defendant pleaded guilty and was sentenced by the Principal Magistrate to 16 months’ imprisonment on 7 August 2017.  The appellant pleaded not guilty and his case was set down for trial.

3.The appellant was convicted after trial by another magistrate (“the magistrate”) on 10 October 2017.  The appellant was then sentenced to 24 months’ imprisonment.  A suspended sentence of 7 days for STCC 2417/2016 was activated and ordered to run consecutively to the 24 months’ imprisonment in this case, making a total sentence of 24 months and 7 days’ imprisonment.

4.The appellant now appeals against his sentence only.  The appellant was represented by a duty lawyer at the trial.  In the appeal proceedings, he is unrepresented.

5.After hearing the submissions of both parties, I dismissed the appeal. These are the reasons.

Prosecution case

6.The magistrate did not prepare a full statement of findings of the facts regarding the conviction.  He briefly summarized the facts as he found in the Statement of Findings (Reasons for Sentence) (“Reasons for Sentence”) as follows:

“The facts in this case are that D2 and D1 acted in concert to sell 0.29 gram of cocaine to an undercover police officer in a rear lane of the Central District. They were caught red-handed with the drug proceed found in D2’s possession.”

7.As can be seen in the Admitted Facts (exhibit P1) at the trial, the case concerns an anti-dangerous drug operation at Lan Kwai Fong.  A police decoy was deployed to buy dangerous drug near a rear lane.  He handed over $1,500 marked money (exhibit P2) to the 1^st defendant.  P2 was found in the appellant’s wallet upon search.

Appellant’s background and mitigation

8.The appellant’s background and mitigation were summarized in paragraphs 4 and 5 of the Reasons for Sentence:

“4. D2 is now 27 years old. He is a Bangladeshi. He came to Hong Kong in 2015. He is now staying in Hong Kong as a torture claimant, i.e. an asylum seeker. He holds a Form 8 recognizance.

5. He has one criminal conviction in 2016.  He was convicted of a count of Breach of Condition of Stay.  He was given 7 days’ imprisonment, which was suspended for 12 months. (STCC 2417/2016 refers.) Owing to the conviction in the present case, he has breached the suspended sentence.”

The magistrate’s reasons for sentence

9.The magistrate took 18 months’ imprisonment as the starting point for the quantity of cocaine in this case.  As the offence was perpetrated by two persons, the magistrate enhanced the starting point to 21 months’ imprisonment.  Relying on HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the magistrate enhanced the sentence to 24 months as the appellant committed a serious crime when he was an asylum seeker in Hong Kong.  Having considered the principle of totality, and the offence for the suspended sentence being of different kind, the magistrate activated the suspended sentence of seven days’ imprisonment in full to be served consecutively to the sentence in the present case.

Grounds of appeal

10.The appellant gave two main grounds in his notice of appeal against sentence:

Ground 1:  The general ground is that the sentence was too severe.

Ground 2: He was a first time offender, but the sentence he is serving is the maximum sentence.

11.At the hearing in court, the appellant says he only handled the money in the drug transaction.  He did not personally deal with the drug.  He asks for a 3-month reduction in sentence.

My opinion

12.The sentencing guidelines for heroin is applicable to trafficking in cocaine: AG v Rojas [1994] 1 HKC 342.  Under the guidelines for trafficking in heroin, the sentencing band for trafficking up to 10 grams is 2 - 5 years’ imprisonment: R v Lau Tak Ming [1990] 2 HKLR 370.  The quantity of the drug in this case was small.  While the magistrate has a discretion not to follow the tariff strictly, he was already generous in taking 18 months as the starting point.  A sentence of 21 months, taking into account of the fact that the offence was committed by two persons together, cannot be regarded as improper.

13.The appellant is a torture claimant when he committed this serious crime in Hong Kong.  The offence has a great impact on our community.  The magistrate rightly followed the principle in HKSAR v Shah Syed Arif, treating this as an aggravating factor.

14.The offence took place in Lan Kwai Fong area, which is a tourist point and many people go there for legitimate dining and entertainment.  I respectfully agree with Wong J in HKSAR v Mohammed Shamiul Hague (HCMA 399/2017) that selling and distributing drug at areas like Lan Kwai Fong could be regarded as an aggravating factor.

15.A 24 months’ imprisonment in all the circumstances of this case cannot be said to be manifestly excessive.

16.The magistrate found the appellant guilty on the basis of joint enterprise and the appellant was acting in concert with the 1^st defendant, selling the drug to the police decoy.  Whether the appellant was involved in direct dealing of the drug or he only played the role of receiving the money is neither here nor there.

17.The appellant complains that he was given the maximum sentence.  The complaint is misconceived.  The maximum sentence for the offence in a magistrates’ court is three years’ imprisonment.

18.The fact that this was the first drug offence committed by the appellant does not have weight in assessing the sentence of the serious crime of trafficking in dangerous drug.

19.The suspended sentence was passed for a totally different offence.  When the suspended sentence was breached, the sentence should be activated.  The activation did not offend the totality principle.

20.Mr Daryanani, for the respondent, fairly made enquiries with the Director of Immigration to find out if there was any previous administrative detention of the appellant for the court to consider if any such period should be taken into consideration.  The Immigration Department has informed the respondent that the appellant has not spent any period of time in administrative detention.

The result

21.The sentence is neither manifestly excessive, nor wrong in principle. The appeal against sentence is therefore dismissed.

Mr Prakash Lachmandas Daryanani, SPP of the Department of Justice, for the respondent

The appellant appeared in person