HKSAR v. Hossain Mohammad Rasal

HCCC 313/2018

[2019] HKCFI 1578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 313 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The defendant was committed for trial on one charge of trafficking in dangerous drugs. However, before any trial days were fixed, he indicated a guilty plea.

On 21 February 2019, the defendant pleaded guilty before me and agreed to the Summary of Facts prepared by the prosecution. The sentence was then adjourned for certain inquiries to be made.

The dangerous drugs concerned were:

(a) 28 plastic bags containing a total of 18.4 grammes of a solid containing 18.4 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’);

(b) 10 plastic bags containing a total of 41.74 grammes of cannabis in herbal form;

(c) 48 plastic bags containing a total of 311.72 grammes of cannabis resin;

(d) 12 plastic bags containing a total of 8.22 grammes of a solid containing 4.23 grammes of cocaine;

(e) 13 plastic bags containing a total of 8.01 grammes of a solid containing 4.09 grammes of cocaine; and

(f) a plastic bag containing 98 tablets containing a total of 11.8 grammes of chloroethcathinone.

Thus, in total, there were 18.4 grammes of ‘Ice’ narcotic, 8.32 grammes of cocaine narcotic and 11.8 grammes of chloroethcathinone narcotic. Besides, there were also 41.74 grammes of herbal cannabis and 311.72 grammes of cannabis resin.

The Facts

It is a typical stop-and-search case. Briefly stated, on 2 October 2017, a group of police officers were in operation in a building on Nathan Road and the defendant was seen by them walking from the staircase to the lift lobby. The officers stopped the defendant and checked the bag carried by the defendant and found in which the aforesaid dangerous drugs which were the subject matter of the charge.

Also inside the bag was one resealable plastic bag containing one electronic scale and 170 resealable plastic bags, $990 cash and one mobile phone. The total estimated retail value of all the dangerous drugs found was $62,614. The defendant remained silent under caution.

The Defendant’s Antecedent

The defendant is now aged 32. He is a national of Bangladesh. He is married and his family is now living in Bangladesh. The defendant claims that he was unemployed and that he was a cocaine addict for two to three months prior to the arrest. He was a Form 8 holder on recognisance. He has a clear record.

Mitigation

Mr Bullett, counsel for the defendant, put forward the following in mitigation:

(a) Although the defendant was committed for trial on 2 October 2018, he first indicated a guilty plea on 12 November 2018 and therefore, no trial days had ever been fixed;

(b) the defendant was cooperative with the police after arrest and is truly remorseful; and

(c) the defendant had contributed to the campaign of Father Wotherspoon by writing letters used in that campaign.

Mr Bullett urged the court not to enhance or not to fully enhance the defendant’s sentence because of his immigration status, as the present offence was committed after the defendant had written to the authority ‘cancelling’ his non‑refoulement claim and asking for repatriation to his home country.

Sentence

It is now well-established that the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and is to be calculated mathematically, HKSAR v Kilima Abubakar Abbas [2018] HKCA 602.

In the present case, I can see no reasons for departing from the mathematical starting point and Mr Bullett, counsel for the defendant, does not suggest the otherwise.

Based on the sentencing tariff laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking between 10 and 70 grammes of ‘Ice’ gives rise to a sentence of 7 to 11 years’ imprisonment. Thus, by a mathematical approach and rounding off the figure, trafficking in 18.4 grammes of ‘Ice’ narcotic alone attracts a starting point of 7 years and 6 months’ imprisonment.

The sentencing tariff for trafficking in cocaine follows that of trafficking in heroin, Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the applicable tariff is the one laid down in R v Lau Tak Ming [1990] 2 HKLR 370. Therefore, trafficking up to 10 grammes would give rise to a sentence of 2 to 5 years. By a mathematical approach, trafficking in 8.32 grammes of cocaine narcotic alone attracts a starting point of 4 years and 5 months’ imprisonment.

According to Attorney General v Tuen Shui Ming & Anor [1995] 2 HKC 798, trafficking in under 2,000 grammes of cannabis resin gives rise to a sentence of up to 16 months. As regards cannabis in herbal form, because of its lower THC concentration, the court may adjust the sentence within the range of tariff downward by up to 1 year. In HKSAR v Chor Lui [2001] 3 HKLRD 95, Lugar-Mawson J said that although there was no tariff for trafficking in herbal cannabis, the benchmark tariff sentence should be 4 months for under 2,000 grammes of herbal cannabis. The case of Chor Lui, being a magistracy appeal, is not binding on this court. However, what Lugar-Mawson J said in that case is helpful and I gratefully adopt it. Thus, trafficking in 311.72 grammes of cannabis resin and 41.74 grammes of herbal cannabis would attract an imprisonment term of about 2 months and a half.

As regards chloroethcathinone, there is no tariff laid down by the Court of Appeal for trafficking in this drug. However, the prosecution, relying on a report recently prepared by Dr Tse Man-li and submitted under the cover of their letter to the court dated 17 April 2019, now accept that, for sentencing purpose, chloroethcathinone should be equated with MDMA rather than ‘Ice’. This represents a change of position and is to contrast with HKSAR v Rasid Abdur (HCCC 73/2018). Ms Chan for the prosecution explains that the expert engaged by the prosecution in that latter case, Dr Ho, had not been asked to comment on the toxicity and addictiveness of chloroethcathinone, as compared with cocaine and ‘Ice’ in the present case. Dr Ho only mentioned that chloroethcathinone is a synthetic cathinone and synthetic cathinones were chemically similar to amphetamine and methamphetamine. Mr Bullett in the present case agrees with the present stance of the prosecution that, for sentencing purpose, chloroethcathinone should be equated with MDMA, which is more favourable to the defendant. In view of the common position of the parties in the present case, I will apply the tariff for trafficking in MDMA to the present case regarding chloroethcathinone under consideration. According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in 10 to 50 grammes of MDMA would attract a sentence ranging from 4 to 6 years. Applying that tariff to the present case, trafficking in 11.8 grammes of chloroethcathinone should attract a mathematical starting point of 4 years and 1 month’s imprisonment.

The Court of Appeal has laid down guidance on sentencing trafficking offences which involve a multiplicity of dangerous drugs. In the present case, there is no dispute that the proper approach to be adopted is the combined approach rather than the individual approach, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.

In order to arrive at a notional starting point for all the dangerous drugs concerned, I would follow what was done in the judgment of the Court of Appeal in HKSAR v Yau Ka Ming (CACC 144/2013), namely by first identifying a starting point for the three most potent dangerous drugs in this case, which are ‘Ice’, cocaine and chloroethcathinone, and for the moment ignore the cannabis resin and herbal cannabis. After that, I will adjust the notional starting point upwards to take into account the presence of the cannabis resin and herbal cannabis and other aggravating features, if any, in the present case.

Upon the request of this court, Ms Chan for the prosecution has helpfully prepared a sheet setting out the respective combined starting points for the total quantity of ‘Ice’, cocaine and chloroethcathinone in question based on the ‘absurdity test’, the ‘conversion test’ and the ‘ratio test’ as stated in HKSAR v Chan Yuk Leong (CACC 318/2013). Mr Bullett has also provided his own calculations. The results obtained by them are similar. I have also done my own calculations, the results of which do not depart significantly from those of counsel.

For the ‘absurdity test’, the total weight of the various narcotics, not including cannabis resin and herbal cannabis, is 38.52 grammes. If all of them were ‘Ice’, then the mathematical starting point for trafficking in them would be 8 years and 11 months. If all of them were cocaine, then the starting point would be 7 years and 2 months. If all of them were chloroethcathinone, then the starting point would be 5 years 5 months.

Next, for the purpose of the ‘conversion test’, one starts with identifying the main or the more serious drug in the case, as described in HKSAR v Chan Ho Wai (CACC 129/2018)as the basis for conversion. As McMahon J said in that case, identifying what is the more serious drug in a given case involved the use of common sense. In the present case, although the ‘Ice’ concerned is not of the largest quantity when compared with the other dangerous drugs, its proportion is still significant. One also has to put on the balance that its potency is the highest among all the other dangerous drugs concerned. Looking at the matter in the round, I agree with the prosecution that the more serious drug in this case is ‘Ice’. I note that Mr Bullett does not suggest the otherwise.

The sentence for trafficking in 8.32 grammes of cocaine would be equivalent to trafficking in about 4.16 grammes of ‘Ice’. And therefore, trafficking in 11.8 grammes of chloroethcathinone would be equivalent to trafficking in about 2.7 grammes of ‘Ice’. Thus, by the ‘conversion test’, trafficking in the ‘Ice’, cocaine and chloroethcathinone in question would be equivalent to trafficking in about (18.4 + 4.16 + 2.7 equals) 25.26 grammes of ‘Ice’. And that would attract a notional starting point of 8 years’ imprisonment.

Turning to the ‘ratio test’. By weight, the ‘Ice’ has a ratio of 47.8 per cent, cocaine 21.6 per cent and chloroethcathinone 30.6 per cent. Thus, the ‘ratio test’ would yield a notional starting point of about 7 years and 5 months.

Based on the above, I adopt a notional starting point of 7 years and 5 months’ imprisonment for trafficking in the ‘Ice’, cocaine and chloroethcathinone concerned.

Turning to the aggravating features, in my view, there are two of them. First, it is now established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered. See, for example, the case authorities referred to in HKSAR v Yim Hung Lui Ricky (CACC 266/2011), at paragraph 11 of that judgment. For this factor and also bearing in mind the presence of ‘Ice’, cocaine, chloroethcathinone, cannabis resin and herbal cannabis, I add 3 months on top of the notional starting point of 7 years and 5 months, resulting in 7 years and 8 months.

Secondly, there is the matter about the defendant’s immigration status, whether any enhancement of sentence should be made, and if so, by how much. According to the letter from the prosecution dated 27 May 2019, the contents of which are not in dispute, the defendant’s non-refoulement claim was first refused on 28 December 2015. On 11 September 2017, the defendant, having exhausted all avenues open to him for appeal and judicial review, wrote to the authority and said that he wished to cancel his claim. He was not repatriated immediately only because there were some administrative procedures to be complied with before that can be done. The present offence was committed on 2 October 2017. I am told by Mr Bullett that the reason for the defendant committing the present offence was financial, namely to support the defendant’s drug habit.

Regarding the question of enhancement, to start with, the defendant has no right to remain in Hong Kong. On the other hand, the offence which he had committed was of a type which affects the very community which allowed him to remain at liberty. The offence also has an obvious and significant impact on Hong Kong’s international reputation as a place of law and order. There was therefore a serious breach of trust and privilege by the defendant who was not normally entitled to be in Hong Kong. There are ample case authorities that there should be an enhancement of sentence for this aggravating feature. To name a few, see HKSAR v Mahabul Alam Khan (CACC 116/2016); HKSAR v Shah Syed Arif [2016] 4 HKLRD 664; HKSAR v Ali Saif [2018] HKCA 358; and more recently, HKSAR v Hussain Abid [2018] HKCA 376.

In my humble view, the fact that the present offence was committed shortly after the defendant had cancelled his non‑refoulement claim should make little difference for the purpose of enhancement. The rationale for enhancement in case of non-refoulement claimants and the need to firmly discourage them from becoming involved in serious crimes apply with equal force, if not greater, for people whose non-refoulement claims have been finally disposed of and are pending repatriation but was allowed to remain at liberty in the interim. For this reason, I add another 8 months, which I consider to be a very modest one in all the circumstances as it could well be much higher. Thus, the final starting point for the defendant, before any reduction for mitigation, is 8 years and 4 months. That is 100 months’ imprisonment.

I now turn to consider the mitigating factor put forward by Mr Bullett. For the defendant’s first indication to plea, shortly after committal but before listing, in view of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1,, I give him a 30 per cent discount which is already a bit more generous than he is entitled to. This reduces his sentence to 70 months.

In view of the defendant’s cooperation with the police after arrest, which does not result in any practical use, I give him another 2 months’ discount which is perhaps also a bit overgenerous in the circumstances. This further reduces his sentence to 68 months.

Finally, for the defendant’s assistance in Father Wotherspoon’s campaign, I exercise my discretion and give the defendant another 2 months’ discount. This further reduces his sentence to 66 months.

In view of all of the above, the defendant is sentenced to 66 months’ imprisonment.