HKSAR v. Muzammel Hoque

DCCC 365/2018

[2019] HKDC 301

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 365 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. He has agreed the facts of the case.

2.The facts show that the defendant is Bangladeshi and in Hong Kong is a registered Form 8 holder. 

3.On 24 January, police went to a flat, where the defendant was present, to exercise a search warrant.  They searched him, discovered a mobile phone and four packets of what is described as plastic wrapping of a similar size containing what was suspected to be dangerous drugs in his right front trousers pocket. 

4.The defendant was arrested, taken to the police station.  The packages were found to be drugs and the narcotic content of those drugs was 21.30 grammes of cocaine, and I know that the defendant was subject to a video recorded interview, which describes him as stating a number of matters relating to dangerous drugs, and those are the facts that happened in this case.

5.Defendant convicted on his possession and admission that the drugs were unlawfully trafficked by him at that location.

6.The defendant’s antecedents, which have been agreed by the court, show him to be aged 42 years old, educated to secondary level in Bangladesh, that he was in Hong Kong as a Form 8 holder, was unemployed prior to his arrest.  He has, I understand, has children, has a daughter, and a father who is 80 years old, a daughter who is now 5 years old, living with her mother in Indonesia.

7.As far as mitigation is concerned, the defendant pleads in aid his plea of guilty.  The plea, in fact, was tendered after trial date.  The first day of trial was 3 December 2018 and the plea was eventually taken by the court on 6 December 2018.  Various reasons have been advanced why I should give the defendant the full one-third discretionary discount.  I will deal with that in my decisions as to the necessary discounts from the starting point for sentence.

8.The defendant also, I am told, is a Form 8 holder as a result of his political involvement in Bangladesh, meaning it would not be safe for him to return, and he seeks political asylum whilst he is here in Hong Kong.

9.As far as the drugs were concerned, his mitigation put before me is that one of the reasons he could afford the drugs is because he had cash from his parents.  He says he is a consumer of the drug and shared with his girlfriend and, I think, other people, but he says the drug was mainly for self-consumption and would be shared in a social context.

10.The defendant has also given assistance to the prosecution in the form of making non-prejudicial statements.  The understanding or the information I have from the prosecution is they have not been able to act on the information given, so technically they have no value in terms of apprehending other drug consumers or traffickers.

11.Nevertheless, they do show some willingness to be of assistance to the prosecution and I am asked to take that into account as being a mitigating factor.

12.Now, turning to the approach to sentence, the defendant has pleaded guilty to trafficking in these drugs, so the guideline sentence for trafficking in cocaine are apposite here.  The operative guideline is the one that is commonly used for the calculation of the sentence in heroin cases.  The 21.30 grammes of the narcotic here mean that this starting point for sentence falls in the range of 10 to 50 grammes, which would require a starting point of between 5 to 8 years’ imprisonment.

13.I consider that the initial starting point should be one of 6 years’ imprisonment (that is, 72 months’ imprisonment), having regard to the quantity of drugs in his possession along the guideline.

14.The defendant is a Form 8 holder and it is now the policy of the courts from the appellate level to recognise that as an aggravating factor in the calculation of sentence, requiring an enhancement of the starting point for sentence.

15.I am required to do that so I will enhance the starting point by 6 months, so that means the starting point for sentence is now 78 months’ imprisonment.

16.Before I calculate the correct deduction for plea of guilty, I must consider the defendant’s mitigation of self-consumption. There can be a deduction from the starting point, where the defendant would consume what is described as a significant portion of drug himself. 

17.I have the defendant’s mitigation on this.  It is not challenged in the facts, put it like that, which are neutral as to that position.

18.The deduction from the starting point can range between 10 to 25 per cent of the starting point for that factor.

19.The defendant tells me the drug was for social consumption.  It is divided into four blocks.  It is a possibility, on what I have before me.  I consider it is appropriate for me to give a discount on that basis.  What I shall do is, in fact, deduct the starting point for sentence by 10 months for the factor of self-consumption.  This leads to a starting point of 68 months’ imprisonment at this point.

20.Now, the defendant has pleaded guilty at a late stage.  Various factors have been put forward as to why his plea was entered into at this late stage:  there was no pre-trial review; the defendant was not fully aware of all the prosecution materials until a late stage.

21.What I shall do is allow a deduction of 25 per cent in this case, having regard to all those factors and also factoring in the assistance the defendant has tried to give to the prosecution.

22.A 25-per-cent deduction from 68 months, by my calculation, is a deduction of a further 17 months, which would give a final sentence of 51 months’ imprisonment.  Unless those mathematics are challenged, that would be the final figure for sentence:  51 months’ imprisonment.