HKSAR v. Mohammed Shabir

CACC 179/2017

[2019] HKCA 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 179 OF 2017

(ON APPEAL FROM HCCC NO 18 OF 2016)

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Before: Hon Zervos JA in Court

Date of Hearing: 21 June 2019

Date of Judgment: 21 June 2019

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J U D G M E N T

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1.The applicant applies for leave to appeal against his sentence of a total of 20 months’ imprisonment imposed on him by Deputy High Court Judge McMahon (the judge), following his conviction of two counts of possession of a dangerous drug. 

2.The applicant initially stood trial on an indictment containing two counts of trafficking of a dangerous drug (Counts 1 and 2) and one count of possession of a dangerous drug (Count 3).  The applicant pleaded guilty to Count 3 and proceeded to trial before the judge and a jury on Counts 1 and 2.  At the conclusion of the trial, the jury found the applicant not guilty of the trafficking in a dangerous drug on Count 1, but guilty of possession of the dangerous drug.  The jury were unable to arrive at a verdict in respect to the larger amount of dangerous drug which was the subject of Count 2. 

3.The brief facts of the possession offences of Counts 1 and 3 were as follows.  On 7 July 2015, police received information that a motor vehicle parked in Jaffe Road in Wan Chai and owned by the applicant contained a quantity of dangerous drugs.  Police officers were despatched to the location, and the applicant was intercepted as he attempted to board the motor vehicle.  Both the applicant and the motor vehicle were searched.  In a wallet carried by the applicant was found a plastic bag, containing 1.1 grammes of Ice, the subject of Count 1, and under the front passenger seat of his motor vehicle was found another plastic bag containing 24 grammes of Ice, the subject of Count 2, being the count on which the jury were unable to arrive at a verdict. 

4.Following the arrest of the applicant at Wan Chai, he was taken to his residence in Yuen Long.  In his bedroom, inside a metal box, was found the drugs, the subject of Count 3, namely 3.96 grammes of a crystalline solid containing 3.92 grammes of Ice and 0.73 gramme of cannabis in herbal form.  Also found was a bottle adapted for use to consume Ice and 172 re-sealable plastic bags.

5.In a video recorded interview, the applicant admitted he would take drugs to his residence and that sometimes he shared them with his friends.

6.The judge in his reasons for sentence set out the background of the case and the mitigation presented on behalf of the applicant.  He explained that because the applicant had been convicted of possession of a dangerous drug, he requested a report as to his suitability for detention for the purpose of rehabilitation in a Drug Addiction Treatment Centre.  The report concluded that the applicant was unsuitable. 

7.The judge adopted a starting point of 12 months’ imprisonment on Count 1 because the applicant possessed the drugs in a public place and was at the time of his apprehension talking to a group of other people in Jaffe Road, and there was a degree of risk that some of the drugs might be obtained by another person.  Accordingly, he enhanced the starting point by 3 months and arrived at a final starting point of 15 months’ imprisonment.  He noted that the applicant had indicated that he was prepared to plead guilty to the offence of possession of the dangerous drug, the subject of Count 1, and proceeded on the basis that he was entitled to the full discount of one-third to his sentence.  He sentenced the applicant to 10 months’ imprisonment on Count 1.

8.The judge adopted a starting point of 12 months’ imprisonment on Count 3.  He noted that the drugs in question had been recovered from the applicant’s bedroom where there was at least one other person present.  He noted that the applicant’s bedroom was unlocked and that the drugs were in a metal box on a table in the room and there were other items in the room consistent with the smoking of Ice.  For the purposes of sentencing on this count, he disregarded the herbal cannabis that was also found which consisted of a relatively small amount.  He concluded that given the circumstances of the applicant’s possession of the Ice, which included what appeared to be a communal smoking pot, the latent risk of others having access to the drugs was greater than in Count 1, even though they were found in his flat.  He therefore enhanced the starting point by 9 months’ imprisonment and arrived at a sentence of 21 months’ imprisonment which he reduced by one-third for the applicant’s guilty plea to 14 months’ imprisonment.

9.The total sentence of the two counts was 24 months’ imprisonment which the judge, after taking into account the totality principle, ordered that 6 months of the sentence imposed on Count 1 be served consecutively to the sentence imposed on Count 3, thus resulting in a total sentence of 1 year and 8 months’ imprisonment.

10.The applicant complains that the total sentence of 1 year and 8 months’ imprisonment and the enhancement for a latent risk of 9 months on Count 3 were manifestly excessive. 

11.The present case involves two separate counts of possession of a dangerous drug where the Ice was found at two different locations.  The judge in determining the starting point on each count took into account all the relevant circumstances, which he variously enhanced for the latent risk factor.  This was in accordance with the authorities of HKSAR v Mok Cho Tik [2001] 1 HKC 261; HKSAR v Minney [2011] 3 HKLRD 556; and HKSAR v Chan Tai Wah [2012] 4 HKLRD 674.

12.The judge very carefully considered each count and applied the correct sentencing guidelines and principles.  There is no merit in the application for leave to appeal against sentence and it is accordingly refused.

13.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application. 

Ms Lisa GO, SPP (Ag.) of the Department of Justice, for the respondent

The applicant appeared in person