HKSAR v. Hossain Afsar

HCCC 301/2017

[2018] HKCFI 2306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 301 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 19 January 2017, Afsar Hossain was arrested and charged with trafficking in 47.7 grammes of cannabis in herbal form, 339.9 grammes of a solid containing 228.78 grammes of cocaine, 80.02 grammes of cannabis resin and 13.1 grammes of a crystalline solid containing 10.7 grammes of methylenedioxymethamphetamine, otherwise known as MDMA. The place of arrest was at the 5th Floor of No 23A Lock Road, in Tsim Sha Tsui, in Kowloon.

On 20 January 2017, Mr Hossain went before a magistrate at Kowloon City Magistrates’ Court. The charges were put to him and he asserted and I quote, “This is not mine”. The proceedings were adjourned on a number of occasions until 28 August 2017 when he appeared before a magistrate and was committed for trial.

On 4 September 2017, an indictment alleging the two charges was filed with the High Court. This court came up before the Court of First Instance on 16 January for the purposes of a case management hearing. At the hearing of these proceedings he indicated in open court that he was willing to plead guilty. A further hearing on 31 January 2018 was held. That hearing was in chambers but not open to the public. In the course of that hearing it was indicated that there had been developments in the case and that the prosecutor then appearing indicated he wished more time to consider the position.

On 6 February 2018, the matter came up in open court and, on arraignment, Mr Hossain pleaded guilty to both counts on the indictment. He was convicted on his own plea and a summary of facts was read and agreed. The facts that were agreed was that at about 4.53 pm, on 19 January 2017, two police officers in plain clothes were on patrol in the vicinity of Lock Road in Tsim Sha Tsui. Indeed, they were walking along the staircase of a building at 23A Lock Road and as they reached the 5th floor they noticed Mr Hossain emerging from flat D.

The impression of the officers was that Mr Hossain appeared to notice the officers and appeared to the officers to become quite nervous. As a result of this, he was stopped and searched. In the course of that search, two packets of what was apparently cannabis buds were found in the left pocket of Mr Hossain. He was arrested and cautioned for the possession of suspected dangerous drugs and said in English to the officers, “I buy for myself alone”. He was asked about his residence and he asserted that he lived in flat E of the premises on the 5th floor.

A further search of Mr Hossain revealed three sets of keys and a Form 8, which is a form issued by the Immigration Department and is issued to persons who enter Hong Kong and make a claim under Hong Kong that the person be permitted to remain in Hong Kong by reason of Hong Kong’s obligations under various conventions.

Also found on Mr Hossain was a pair of mobile telephones. Two of the keys found in the possession of Mr Hossain enabled the police to unlock the locks in the wooden door of flat D. When they undertook this exercise, the metal door to flat D was not then locked. A search warrant was executed in flat D. On entering flat D the police found that the premises were virtually unfurnished and there was only a bunkbed and a mattress. A further search of the premises revealed the discovery of an electronic scale, two notebooks, a ballpoint pen and a pair of scissors.

Further examination of the flat revealed two yellow plastic bags which revealed a plastic bag containing 195 grammes of a solid containing 133 grammes of cocaine, a plastic bag containing seven packets which contained 101 grammes of solid containing an amount of cocaine, five cling-film wrapped packets containing a total of 30.39 grammes of cannabis resin, three cling-film wrapped packets containing a total of 49.63 grammes of cannabis resin, two packets wrapped up in a piece of tape which contained 32.9 grammes of a solid containing 20.4 grammes of cocaine, 20 plastic bags containing a total of 13.1 grammes of a crystalline solid containing 10.7 grammes of MDMA and a large number of empty re-sealable plastic bags in various sizes.

Following the finding of the dangerous drugs to which I have just referred, Mr Hossain was further arrested and cautioned. Further searches of flat E, this is the flat which Mr Hossain said to the police was his residence, revealed nothing. Mr Hossain underwent a video recorded interview under caution and indicated he had no idea why he appeared at the scene and why there were dangerous drugs in flat D. Moreover, he was unable to explain why he had possession of the keys to flat D. He said that the herbal cannabis found in his possession was for his own consumption.

The estimated street value of the drugs seized is as follows: $15,500 for the herbal cannabis; $308,000 for the cocaine and $8,500 for the cannabis resin. The total is something of the order of $332,000.

At the time of his arrest Mr Hossain was a 35-year-old man, having been born in India. He has or had a wife in India, they are divorced, and two sons were the product of that marriage. He divorced only recently. He is a person who completed secondary school. As I have mentioned, he is a Form 8 holder and I understand that his claims that underlie that Form 8 remain undetermined.

The community in Hong Kong regards the trafficking in dangerous drugs to be a very serious matter. Focusing particularly on the cocaine involved, the ingestion of the drugs in question is a serious and potentially dangerous matter in two respects: first of all, there is a substantial danger to the user, both in terms of addiction and the implications for the health of the user; secondly, there is often an impact on the community because of the potential behaviour of a person under the influence of cocaine and it may also have an impact on the community in the context of the treatment that a cocaine user might need as a result of his or her addiction.

In simple language, even if Mr Hossain was not himself a user of the drugs, the overwhelming inference to be derived from his possession of the keys, the quantity and arrangement of the drugs, the scale and the re-sealable plastic bags is that Mr Hossain was obviously involved in the supply chain in respect of the drugs and was, in that regard, one of those persons involved in exposing persons who acquired the drugs to the dangers to which I have just made reference. On any view, the trafficking of these drugs and particularly the quantity of these drugs is a very serious matter.

I am not in a position to make a judgment about the role of the accused in this case. The prosecution, in providing the summary of facts to which the accused accepted, merely describe the events which occurred and did not categorise those activities in terms of where Mr Hossain was in the chain of activity which is the world of drug trafficking. It would have been helpful to know, particularly given that the accused is a person who was not only carrying drugs to which he has pleaded guilty, but also had the keys to an organised storeroom of drugs. The position is that the evidence is not sufficient for me to make any finding on this matter.

As I say, the courts of Hong Kong reflect the community view in the sentences which are imposed on the trafficking in dangerous drugs such as those which are the subject of this indictment.

Sentencing guidelines have been provided for the trafficking of drugs, the subject of the indictment. The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370, in AG v Rojas [1994] 1 HKC 34 and R v Chang Chen Liu, Sa [1994] 3 HKC 685. The Court of Appeal declared that the guidelines in R v Lau Tak Ming & others are appropriate for cocaine. The maximum sentence is life imprisonment and a fine of $5 million. The relevant guideline for the quantity of cocaine involved in this case is that for quantities between 200 grammes and 400 grammes, 12 to 15 years’ imprisonment is appropriate.

The courts recognise so far as cannabis is concerned that herbal cannabis is to be treated differently from cannabis resin. The reason for this is it has long been recognised that the active organic chemical in cannabis varies as between herbal cannabis and cannabis resin. That was recognised in AG v Chan Chi Man [1987] HKLR 221. However, in Secretary for Justice v Lee Shui Kei [2006] 1 HKC 499, the Court of Appeal suggested the concentration of THC, which is the active organic chemical in herbal cannabis, was likely to be substantially lower than cannabis resin and that a more realistic view was that the concentration of THC in cannabis resin was about four times that of herbal cannabis.

In AG v Tuen Shui Ming & Anor [1995] 2 HKC 798, the Court of Appeal suggested guidelines for trafficking in cannabis resin. In that decision the court was dealing with substantially more than is present in the instant case. It suggested that for cases under 2,000 grammes, a sentence of up to 16 months would be appropriate. A downward adjustment of sentences for herbal cannabis to reflect the lower THC content should be made and that is to be found in Secretary for Justice v Lee Shui Kei [2006] 1 HKC 499.

Sentencing guidelines for methyleneioxymethamphetamine or MDMA were given in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323. In that case it was suggested that for quantities between 10 grammes and 50 grammes, a sentence in the range of 4 to 6 years’ imprisonment was appropriate.

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there is a collection of different dangerous drugs to which Mr Hossain has pleaded guilty. The authorities identify different approaches. The approaches identified in the authorities recognise that an approach where a sentence for each component of the collection of drugs in which the defendant was trafficking might, if they were simply added together, produce a result which is unjust.

That is, in the final result, a reflection of the basic principle that sentencing is an art and not a mathematical exercise and that the art of sentencing is devoted to producing a just result, given the circumstances of the defendant; a just result in this context against the background that the imperative which arises from the community and the courts thus taking a strong view of dangerous drugs.

The essence of the appropriate approach is that if the drugs are of approximately similar nature then the combined approach would be appropriate and the authority for that is HKSAR v Ko Ka Hing [2009] 4 HKLRD 826. At paragraph 3 of that judgment, Cheung JA and Tong J said that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.

In the present case it is safe to judicially notice the fact that drugs in the present indictment are both chemically different and different in their long-term effects and the effect of the use of those drugs on the wider community. By far the most serious of the drugs in question is cocaine. Coincidentally, that is the drug in terms of quantity and seriousness which is by far the most significant of the drugs in question.

Part of the problem is that there are different forms of both drugs in terms of chemistry and seriousness in Count 2. The nature of the cannabis in Count 1 is different in terms of the concentration of the active ingredient THC to the cannabis in Count 2. In that light, what I would have done had the drug in the 1st count been of significance in terms of weight or seriousness I would have imposed a sentence as between the counts which was partly consecutive and partly concurrent on the basis of its comparison to the array of drugs in Count 2.

However, in the circumstances, the drug in the 1st count is the least serious of all and, in all the circumstances, I propose to sentence on a wholly concurrent basis to the sentence in respect of Count 2. I propose to sentence on the basis of the most serious of the drugs, the cocaine, and make upward adjustments to that sentence in respect of the other drugs, but on the basis that had they been pleaded in separate counts the appropriate approach would be a use of consecutive and concurrent sentences.

In doing this, the object of the exercise is to attain a form of overall justice and to ensure that the totality of the sentences I propose to pass is not taken, as a whole, disproportionate. Accordingly, the sentences which would have been appropriate had the matter gone to trial and the accused convicted would be as follows: 47.7 grammes of cannabis in herbal form, 7 days; 339 grammes of a solid containing 228.78 grammes of cocaine, 12.5 years’ imprisonment; 80.02 grammes of cannabis resin, 28 days; 13.1 grammes of crystalline solid containing 10.7 grammes of MDMA, 4 years and 3 months.

As I have already indicated, the sentence on Count 1 will be concurrent to Count 2. In relation to Count 2, I think it is appropriate to sentence on the basis that the array of drugs, had they been treated separately and then calculate the sentence on the basis of that. What I have come to is that 2 years of the 4 years and 3 months for the MDMA would be treated consecutively to the 12.5 years for the cocaine.

My calculation drives me to the conclusion that in view of the levels of sentence we are talking about in the present case it is not appropriate to add to that in respect of the cannabis resin. Accordingly, the starting point is 14.5 years. Mr Hossain is a Form 8 holder. That of itself is a relevant factor in considering sentence.

In HKSAR v Sandagdori Altanknayag & Anor [2014] 1 HKC 206, the Court of Appeal considered that there were circumstances in which a person in the position of Mr Hossain might find an aggravation of sentence by reason of this situation. In that case the Court of Appeal was considering a Form 8 holder who had, together with another person, set out on a spree in a well-known entertainment area in Hong Kong. Macrae JA for the court observed in relation to this person, who was the 2nd appellant before the Court of Appeal, and I quote:

“[21] Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered and when that crime also has the effect of tarnishing this city’s reputation for order and security of which he seeks to avail himself, that is a factor which is capable of aggravating his sentence for the crime.

[22] We do not say that someone sharing the 2nd appellant’s status would aggravate his position in every case or in every crime. Obviously there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant effect on Hong Kong’s reputation. However, in this case, not only did the 2nd appellant team up with a fellow countryman within hours of his arrival in Hong Kong, he must have known and been privy to the fact that the only purpose and intention of the 1st appellant in coming to Hong Kong was to commit theft but the target was to be a well-known and highly populated tourist destination. If the renown of Lan Kwai Fong had not reached the 1st appellant’s ears it would certainly have been known to the 2nd appellant. In our view, this was a serious aggravating feature which we would add to those identified by the trial judge”.

As was observed, not every crime would attract an element of aggravation. The key issue is the dividing line between those cases where the conduct of the Form 8 holder might attract an enhancement of sentence by reason of that status and those who would not. I suspect that the fact that the offence is serious would not necessarily provide any assistance. For example, a wounding or even a serious one in domestic circumstances would not, in my judgment, ordinarily attract the kind of aggravation of sentence under consideration in the case to which I have just made reference.

However, wherever the dividing line might be drawn it is clear beyond argument that drug trafficking is one activity which would attract the kind of aggravation of sentence contemplated by the line of cases exemplified by the one to which I have just made reference.

In my judgment, the commission of the offence of trafficking in dangerous drugs by a Form 8 torture claimant is a matter of significant aggravation. While I perfectly appreciate that persons in the position of the accused do not have an easy existence in Hong Kong, the line is manifestly crossed when they move into activities such as drug trafficking, and serious drug trafficking at that. It seems to me that the enhancement of sentence ought to be 1 year.

I make it plain that but for the concern I have about the totality of the sentence I could easily have seen my way clear to take a much sterner view in relation to the issue of enhancement. I will add the 1 year to the sentence on Count 2. For the avoidance of any doubt the enhancement is equally relevant to Count 1 as well. I have simply added the enhancement to the sentence in Count 2 for the purposes of simplicity.

Pausing there, I have not overlooked and can readily accept that there may well have been an element of exploitation of Mr Hossain in this case. That is a point that was made and made cogently by Father John Wotherspoon in the two letters which he has provided to this court and which I have admitted as Exhibit 1A and 1B respectively. The enhancement would have been substantially more but for that element of exploitation.

There remains the issue of the treatment of remorse and the plea of guilty. In HKSAR v Ngo Van Nam [2016] 5 HKLRD, [2016] 5 HKC 231, [2016] HKEC 190, the Court of Appeal in 2016 reaffirmed the long-standing practice of according to an accused person who pleaded guilty some discount off an otherwise appropriate sentence for his plea. What the Court of Appeal did in that case was to indicate that the level of discount might vary depending on the timing of the indication to the court or to the prosecution of an intention to plead guilty. Ordinarily for a plea of guilty to an offence a discount of one-third would be allowed had the plea of guilty been indicated at the earliest practicable time, that is, at committal.

This matter had been set down for trial in February 2018. The plea of guilty was indicated at the case management hearing about six or eight weeks before the trial. The rationale for reducing sentence by a lower percentage to that which otherwise might have operated had the plea been at the earliest practicable time, is to reduce the waste of judicial and community resources. In the latter category I include arrangements to have to be made for witnesses to attend trial, counsel to be briefed for at least and possibly both for the defence and the prosecution, as well as other matters.

An early plea frees the judicial resources of Hong Kong so that persons other than the accused will get their trial on earlier than otherwise might have been the case. While the advantage to the community in this regard cannot be quantified, it is manifestly tangible.

In HKSAR v Ngo Van Nam it was held that if the plea was indicated before the case was set down for trial, a discount of something of the order of 25 per cent should apply, but if the plea was on the first day of trial a discount of 20 per cent would be appropriate. The court records reveal that this matter was set down on 23 October 2017.

I also take into account the fact that whilst there had been appropriate legal advice by experienced and able counsel, there was also what is characterised very generously by Mr Parry, for the accused, advice from possibly unqualified persons in the course of the incarceration of the accused prior to the disposition of his case. There was also I am told and I accept an element of pressure on the applicant to maintain a plea of not guilty. For that reason I might be accused for being over-generous, but I think a discount of 25 per cent is appropriate in all the circumstances.

Afsar Hossain, please stand up. The order of this court is that the sentence in relation to Count 1 on the indictment of 2 weeks and the sentence of 14.5 years in relation to Count 2 on the indictment, enhanced by 1 year, making a total 15.5 years, is to be reduced by 25 per cent for the plea of guilty, the mitigation advanced, including particularly the remorse which has been expressed on your behalf. The sentence I must impose upon you is that you be in prison for 11 years and 7 months.