HKSAR v. Zzaman Md Asadu

DCCC 238/2018

[2018] HKDC 1318

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 238 OF 2018

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Reasons for Sentence

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Charge

1.The Defendant pleads not guilty to a charge of drug trafficking.  He is willing to plead guilty to simple possession but the prosecution does not accept it.  A trial takes place on the original charge of drug trafficking.

Case proved

2.It is admitted under s. 65C of the Criminal Procedure Ordinance, Cap. 221, that the Defendant was stopped by 2 police officers near the junction of Canton Road and Haiphong Road, Tsim Sha Tsui at around 3 pm on 18/1/2018.  They discovered a small metal box which contained 14 transparent resealable plastic bags with a certain substance.  He was arrested at the scene.  He showed the police his Form 8 recognisance paper.  With the assistance of a Bengali interpreter at the police station, the police post-recorded the arrest of the Defendant.  He had stated under caution, “I bought these drugs for my own consumption a few times.  I bought them for $5,000 from an unknown male at Chunking Mansion today.”  He had $90.50 cash on him. 

3.The government chemist certificate described the substance as 10 grammes of a mixture containing 6 grammes of cocaine. 

4.A video-recorded interview under caution was conducted by the police with the Defendant on 19/1/2018, which contained the following answers, among others:

(1) The drug was for his own consumption;

(2) He bought it from a person who looked Nigerian;

(3) He bought the 14 packets of drug together for $5,000, a much cheaper price than an individual packet;

(4) He had no job but had horse racing winnings of $12,000 to pay for the drug;

(5) The 14 packets would last one month.

5.The Defendant elects to give evidence.  Generally speaking, he would share his drug with his friends, who would also share theirs with him.  For the 14 packets of drug in question, his friends might consume them if they did not have the money to buy drug. 

6.The Defendant in the witness box has virtually admitted that the drug in question might be made available to his friends.  I convict him as charged. 

Mitigation

7.The Defendant is 36 years of age.  He was educated up to secondary level in Bangladesh. He had one criminal record, ie simple possession of drug resulting in a fine of $2,000 on 22/12/2016.  He was not allowed to take up any job because of his immigration status. 

8.The sentencing guidelines for trafficking up to 10 grammes of cocaine point to 2 to 5 years’ imprisonment (A.G. v Rojas CAAR 15/1993 applying the guidelines for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 to cocaine). 

9.Mr. Boyton asks me to consider that the urine test after he was arrested showed cocaine positive, reflecting that part of the drug in question would be for partial consumption.  I accept that to be the case. 

10.There is no dispute that his non-refoulement claimant status is an aggravating factor in his sentence as the offence of drug trafficking is doing great harm to the community of Hong Kong. 

Sentencing this Defendant

11.I take a basic starting point of 40 months.  Because of his non-refoulement claimant status, I increase it to 45 months.  However, owing to the feature of partial consumption, I reduce it by 9 months.  There are no other factors affecting his sentence.  He is sentenced to 36 months.