HKSAR v. Khan Tarik

DCCC 531/2018

[2019] HKDC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 531 OF 2018

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Reasons for Sentence

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1.Defendant pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. 

2.At around 1500 hours on 1 March 2018, police officers spotted defendant walking furtively towards the direction of Hong Kong Cultural Centre, Tsim Sha Tsui.  They then intercepted defendant at the platform of that location, but defendant suddenly fled towards the harbour direction.  After a short chase, defendant fell on the ground at the harbour-side area and said to police “Sorry, sir!  Sorry, sir!” and said that he was a Form 8 holder but he lost the documentations.

3.Upon body search on the defendant, a black plastic bag at defendant’s waistline containing multiple packets of suspected dangerous drugs was found.

4.The government chemist examined and certified the seized drugs found on the defendant being:

i. 18 plastic bags containing a total of 11.6 grammes of a solid containing 5.79 grammes of cocaine;

ii. 22 packets (17 of the 22 packets were wrapped by adhesive tape) containing a total of 139.35 grammes of cannabis resin;

iii. 5 plastic bags containing a total of 20.04 grammes of herbal cannabis;

iv. 1 plastic bag containing 13 tablets containing a total of 2.91 grammes of 3,4-methylenedioxymethamphetamine (MDMA), otherwise known as “Ecstasy”.

5.The estimated street value of the respective drugs:

i. For cocaine: about $11,000;

ii. For cannabis resin and herbal cannabis: about $10,000-odd and $5,400-odd respectively; and

iii. For the “Ecstasy”: about $300-odd.

6.Defendant now admits possession of the seized drugs for the purpose of trafficking.

7.Defendant aged 36, a Form 8 holder coming from India.  He had one previous conviction of possession of dangerous drugs and was sentenced on 3 February 2018 for 6 days’ imprisonment, suspended for 12 months.

8.Just within a month from that sentence, defendant committed the present offence on 1 March 2018 and was in breach of the suspended sentence.

9.Mr Nasir submits that the defendant is a habitual drug-user and defendant had started work at about age 10 in garment industry and had taken drugs to alleviate pain and stress onwards.

10.For the drugs involved, D would consume about 5 tablets of “Ecstasy”, 50% of cannabis and perhaps traces of cocaine involved, which could be confirmed from the urine test result as submitted.

11.Mr Nasir also set out a clear and succinct tables of respective guideline and different approach for sentence on combined drugs, which, in total, it was submitted that about 4 years and 3 months’ imprisonment of starting point could be adopted, disregarding cannabis.

12.Defendant now pleaded guilty at the earliest opportunity and hopes for a lenient sentence.

13.Trafficking in dangerous drugs is a very serious offence, and the Court of Appeal in AG v Pedro Nel Rojas [1994] 1 HKC 342 had adopted R v Lau Tak Ming [1990] 2 HKLR 370 and stated that, for trafficking in cocaine up to 10 grammes, 2 to 5 years’ imprisonment should be imposed; and for trafficking in cannabis resin up to 2,000 grammes, up to 16 months, as set out in R v Tuen Shui Ming CAAR 12/1994; while for herbal cannabis, sentence should be adjust downwards up to a year compared to cannabis resin; as for “Ecstasy”, in Secretary for Justice v Hii Siew Cheng CAAR 7/2006, 1 to 10 grammes, 2 to 4 years’ imprisonment.

14.In the present case:

i. There were 18 plastic bags containing 5.79 grammes of cocaine, about 3½ years’ imprisonment or more should be adopted;

ii. As to 139.35 grammes of cannabis resin and 20 grammes of herbal cannabis, about 1½ months;

iii. As to 2.91 grammes of “Ecstasy”, 2 years’ imprisonment or more.

15.For sentence of trafficking in different drugs at the same time, the Court of Appeal in HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Chan Yuk Leong CACC 318/2013, had set out the different approach for sentencing.

16.Clearly, by simply adding up all the respective sentence would be too high, and I assess that the best approach in the present case may be for taking the most potent or addictive drugs first, say, cocaine, as a base, and making upward adjustment for other drugs. 

17.So it seems at least in total about 4½ years’ imprisonment or more should be adopted as a starting point, not to mention that the defendant is a Form 8 holder, the starting point should be enhanced, but at the same time defendant would consume small part of the drugs. 

18.So, all in all, I assess that the overall starting point of 4½ years’ imprisonment should be adopted.  Upon defendant’s guilty plea, it comes down to 3 years’ imprisonment.

19.Lastly, there is no reason not to activate the suspended sentence (KCCC405/2018).  So, after activation, defendant should be sentenced to 3 years and 6 days’ imprisonment.