HKSAR v. Haque Sahbaaz

HCCC 35/2019

[2019] HKCFI 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 35 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me to one count of trafficking in a dangerous drug. The offence took place on 13 April 2018 and the subject matter of the drug is 527.76 grammes of a crystalline solid containing 37.42 grammes of methamphetamine hydrochloride, commonly known as ‘ICE’.

2.The case against the defendant is simple and straight forward and is a stop and search case.  At around 0335 hours on the offence date, DPC 14808 (PW1) was on duty at Nathan Road, between Granville Road and Haiphong Road when he saw the defendant, a Form 8 holder, holding a white plastic bag acting suspiciously.  When the defendant was walking along Nathan Road passing the junction of Cameron Road, PW1 saw the defendant having dropped the white plastic bag near the roadside in front of the Hong Kong and Shanghai Banking Corporation and going back to Cameron Road.  As PW1 noticed that the defendant was acting furtively, he intercepted the defendant and he brought him back to the location where he had dropped the white plastic bag for enquiry.

3.At this juncture, another policeman (PW2) approached them and rendered assistance.  PW2 searched the white plastic bag dropped by the defendant and he found inside three transparent plastic bags containing suspected dangerous drugs in crystalline form.  The defendant was immediately arrested in English and he gave no response.  The defendant was then brought back to the Tsim Sha Tsui police station.

4.Later, a video recorded interview was conducted with the defendant in which he remained silent under caution.

5.The suspected dangerous drugs were later sent to the Government Chemist for analysis and they confirmed that those three plastic bags contained 37.42 grammes of ICE. 

6.The estimated market price of the ICE seized is about $21,553.92.

7.By pleading guilty to the charge, the defendant admits that he knew he was unlawfully trafficking in the dangerous drugs seized at the time of the offence.

8.The criminal record of the defendant shows that he has two convictions in the past since 2017 including one similar offence of trafficking in dangerous drugs in 2018 for which he was sentence in May 2018 to 8 months’ imprisonment in the Eastern Magistrates’ Courts.  I was informed by the prosecution that the defendant committed the present offence whilst he was still on police bail in respect of his last drug trafficking offence.

9.According to the antecedent statement of the defendant, he is now 26 years old and he was born in India.  He completed primary 5 level of education in India.  He came to Hong Kong in December 2016 and made a torture claim to the government thereafter.  He is single and all of his family are still in India.  The defendant was unemployed at the time of the offence.

10.In mitigation, Mr Sio submits that the only mitigating factor in this case is the guilty plea of the defendant which he tendered at the earliest opportunity and his co-operation with the police.  He also agrees with the prosecution’s position regarding the enhancement of starting point on the ground of the offence being committed by a torture claimant.  As to committing further offence whilst on bail, Mr Sio accepts that is an aggravating factor and he has no submission.

11.In sentencing the defendant, I have borne in mind the nature of the drugs and the quantity of the drugs.  I have considered the facts of this case and all the matters urged on the defendant’s behalf by Mr Sio.  Given the quantity of ‘Ice’ involved in the present case, applying the tariff as set down by the Court of Appeal in HKSAR v Tam Yi-chun [2014] 3 HKLRD 691, a starting point of about 8 years and 9 months should be adopted based on the quantity.  The fact that the defendant was a torture claimant in Hong Kong when he committed this serious offence was held to be an aggravating factor, which not only affected the community as a whole but severely tarnished the reputation of this city for order and security.  For this reason, his sentence would be further enhanced by 9 months.  Also, he committed the present offence whilst on police bail for which his sentence would be further enhanced by 3 months.  The starting point before reduction is therefore 117 months.

12.The defendant pleaded guilty at the first available opportunity for which he is entitled to a full one-third reduction.  That would bring the sentence down to 78 months or 6 years and 6 months’ imprisonment.  Apart from the guilty plea of the defendant, there is no effective mitigating factor which can further reduce the sentence.

Representation

Mr SIU Kai-yip, William, Senior Public Prosecutor for HKSAR

Mr Devin SIO Chan-in, instructed by Wai & Co Solicitors, assigned by DLA, for the accused