HKSAR v. Bashir Zahid

DCCC 80/2018

[2018] HKDC 634

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 80 OF 2018

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REASONS FOR SENTENCE

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Background

1.The defendant pleaded guilty before me for both charges.

Relevant facts

2.At around 3:20 am on 25 November 2017, police officers conducted an anti-narcotic operation on 10^th Floor Yu Yat house, Yat Tung Estate, Tung Chung, Hong Kong.  The defendant was intercepted and body search on him found a transparent re-sealable plastic bag containing 0.83 grammes of crystalline solid containing 0.83 grammes of methamphetamine hydrochloride (charge 1).

3.House search was conducted in the defendant’s home in Room 1008 of the same building on the same day.  Inside a shoe box, the following items were found and seized (charge 2):-

(1) 7 transparent re-sealable plastic bags containing a total of 8.37 grammes of crystalline solid containing 8.25 grammes of methamphetamine hydrochloride;

(2) a plastic box containing a total of 1.22 grammes of crystalline solid containing 1.13 grammes of methamphetamine hydrochloride;

(3) an electronic scale;

(4) a plastic zip-lock container containing 47 unused transparent re-sealable plastic bags; and

(5) a pair of 27 cm long clippers.

4.Under cautioned video-recorded interview, the defendant said, among other things, usually, he would bring dangerous drug to his friend’s home to share together if his friend was short of drug.

5.The estimated retail value of “Ice” seized is $4,283.

The defendant’s criminal records and mitigation

6.The defendant has 4 previous convictions, none is similar to trafficking in dangerous drugs.  The last conviction was in 1999 and he has been out of trouble for 19 years.  

7.I have carefully considered what has been said on the defendant’s behalf.  I will certainly take into account his early guilty plea which will result in 1/3 discount. 

8.Regarding the defendant’s personal background, the defendant is now 43 years old, divorcee with a decent life and gainful employment for the past years until the commission of the present offence.  I was told that the defendant was a heavy user of dangerous drugs.  As such, he claimed 15% of the drug found was for self-consumption.  The prosecution is neutral on that proposition. Given the urine test result for the defendant and the recent decided cases, there is credible evidence in support and I accept 15% of the “Ice” found was for self-consumption. 

Sentencing consideration and discussion

9.Legally speaking, according to the case of HKSAR v Tam Yi Chun CACC 524/2011, trafficking the total weight of 10.21 grammes of “Ice” may attract 7 years of imprisonment (“total weight approach”).  If I take 15% off the total weight and that results in 8.67 grammes, which may attract 75 to 79 months of imprisonment.  On the other hand, if I treat the 2 charges as separate and distinct offence, the defendant would face a heavier sentence.  There is no straightjacket in sentencing.  The objective is to achieve a fair and just result without anomaly by giving meaningful discount to those who pleaded guilty to multiple offences.  I adopt the respective starting points of 38 months and 70 months (I take 15% off from the 2^nd charge).  1/3 discount should be given for his guilty plea.  The defendant should be sentenced respectively for 25 months and 46.2 months.  I round them down as 25 months and 46 months respectively.   

10.I further take into account the totality principle and to avoid anomaly, bearing in mind the proximity in terms of time, place and same group of police officers in 2 charges, I order 21 months in the 1^st charge be made concurrent with the 2^nd charge.  The total sentence for all charges is 50 months, which is akin to giving 1/3 discount for 75 months had I considered the total weight approach.