HKSAR v. Asif Mahmood

DCCC 663/2018

[2019] HKDC 915

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 663 OF 2018

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REASONS FOR SENTENCE

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Charge

1.The defendant pleads guilty to one count of trafficking in dangerous drugs.  The dangerous drugs in question are 23.6 grammes of solid containing 18.8 grammes of cocaine.  The defendant pleads guilty on the basis that he had the drugs for trafficking as well as for his own consumption.

Facts

2.In the early hours of 9 May 2018, police stopped a taxi at a road block in Tin Shui Wai, New Territories.  The defendant was the only passenger in the car.  Police asked him to alight from the taxi for a search.  When the defendant came out of the taxi, he immediately threw a bag onto the road. Police picked it up and arrested the defendant.  That bag was later found out to be containing 23.6 grammes of solid containing 18.8 grammes of cocaine.  The street value of the drugs was estimated to be around $25,000.

3.Under caution, the defendant said he bought the drugs from a friend for his own consumption.

4.When the defendant was arrested, he had $9,400-odd and two mobile phones with him.

Record

5.The defendant is now aged 44.  He is a national of Pakistan.  He came to Hong Kong in 2003.  He has raised a torture claim, which is still being processed.

6.The defendant has one previous conviction in 2014, including such offences as breach of stay, theft and possession of dangerous drugs.  Both parties agree that past drug conviction was for cannabis.

Mitigation

7.Defence counsel says the defendant is an asylum-seeker.  He lived on subsistence of a few thousand dollars each month.  He also made profits from drug trafficking.

8.Defence counsel says that the defendant suffered serious injury to his right wrist in Pakistan many years ago.  The great pain resulting from that injury has continued.  The defendant would take dangerous drugs to suppress the pain because he could not stand high dosage of painkillers.

9.Defence counsel produces an X-ray report issued by the Correctional Services Department, which says there are a few fragments and a fracture in the defendant’s right wrist.

10.Defence counsel also produces a urine report issued by the Correctional Services Department.  The report reveals the urine sample taken from the defendant during remand two days after his arrest showed positive results with respect to amphetamine, cocaine and cannabis.

11.Defence counsel says the defendant did not take cocaine every day but he would consume such amount of cocaine to kill his wrist pain.  He did so one to two times a week.  Depending on the intensity of the pain, the defendant would take 2 to 3 grammes of cocaine mixture on each occasion.

12.Defence counsel says the defendant told him the drugs in question would last for about 10 days for the dual purpose of trafficking and own consumption.

13.Defence counsel asks the court to give the defendant appropriate discount in sentence for his own use of the drugs as he claims.

Prosecutor’s reply

14.Prosecutor says the defendant’s claim of own consumption is untenable. He asks the court to consider the guidelines laid down in the case of Wong Suet Hau & Anor, CACC 366 & 487/2000.

15.Prosecutor submits that cocaine is not a known or effective painkiller. It is unbelievable that the defendant, being a Form 8 holder, would spend on average nearly a thousand dollars each day on drugs.

16.Prosecutor also submits that the defendant was a trafficker, so he would rather sell the drugs for profit than use some of which for painkilling.

17.Prosecutor refers to HKSAR v Cheung Wai Man, CACC 258/2017, on the issue of own consumption.

18.Prosecutor also mentions the case of HKSAR v Shah Syed Arif, CACC 298/2015, saying that the defendant’s status as a Form 8 holder is an aggravating factor for his trafficking misdeed. 

Defence counsel’s reply

19.Defence counsel says although defendant elects not to give evidence on his own-use claim, the X-ray report and the urine report support the defendant’s claim.

20.Defence counsel agrees that the defendant’s status as a Form 8 holder can be an aggravating factor.  He says it is up to the court to decide whether to enhance the sentence in the present case or not.

Sentence

21.The defendant was caught for possessing 23.6 grammes of solid containing 18.8 grammes of cocaine.  He told the police that the drugs were for his own consumption.  Now he pleads guilty to the charge of trafficking in dangerous drugs on the basis that part of the drugs was for trafficking and the remainder was for his own use.

22.The defendant is an asylum-seeker.  He came to Hong Kong in 2003.  His torture claim is still being processed.

23.The defendant elects not to give evidence in relation to his claim of own consumption of part of the drugs.  He instructs his counsel to tell the court that he had been taking cocaine to kill his right wrist pain.  He also took other drugs.

24.The defendant was arrested on 9 May 2018.  Two days later, a urine sample was taken from him in Lai Chi Kok Reception Centre.  The urine sample revealed a positive result with respect to cannabis, amphetamine and cocaine.

25.The defendant had one previous conviction in 2014 for possession of dangerous drugs, but it was only for cannabis.

26.There is an X-ray report issued by the Correctional Services Department, showing the defendant has a few fragments and a fracture in his right wrist.

27.Defence counsel says the defendant suffered severe wrist injury many years ago in Pakistan.  The pain had been troubling him thereafter.  Normal painkilling medicine could not help, so the defendant resorted to taking dangerous drugs to kill the pain.

28.Defence counsel says the defendant took cocaine intermittently, about one to two times a week.  The defendant would take 2 to 3 grammes of cocaine mixture each time, depending on the intensity of the pain he felt at that time.

29.Prosecutor says cocaine is not known as an effective painkiller.  Without expert evidence, I cannot rule out that cocaine had any psychological or physical painkilling effect for the defendant.

30.The X-ray report supports the defendant’s saying that he had severe wrist injuries.  Lingering pain was possible.

31.The urine test shows defendant had consumed amphetamine, cannabis and cocaine some time before he was arrested.  No doubt the defendant was a drug user, abusing different kinds of dangerous drugs, including cocaine.

32.Prosecutor submits that the defendant lacked the means to take expensive cocaine.  Defence counsel points out that the defendant, although a Form 8 holder, had made profits from drug trafficking.

33.It is worthy to note that the defendant had $9,400-odd with him when he was arrested.  That money was admitted to be drugs proceeds.  I accept defence counsel’s submission that the defendant could afford taking dangerous drugs.

34.It is proven that the defendant had severe wrist injury.  The urine sample taken two days after his arrest while the defendant was still in custody shows positive results to a few dangerous drugs, including cocaine.  I have no doubt that the defendant was a cocaine user, while pushing off the same drug.

35.The defendant’s claim through his counsel that he took cocaine one to two times a week and up to 3 grammes of mixture on each occasion is not a fanciful one.  That would put his weekly consumption to at most about 6 grammes per week.  Such claim of consumption is not excessive.

36.The defendant says the drugs in his possession would last for about 10 days for the dual purpose of trafficking and own consumption.

37.On the basis that the defendant would consume at most 6 grammes of cocaine mixture per week, his own use of the drugs in question in that one week and three days would be around 8.5 grammes of the cocaine mixture.  That represents about 36 per cent of the 23.6 grammes of cocaine mixture he had in his possession for the dual purpose of trafficking and own consumption. That is a significant proportion.  It warrants a sentence discount.

38.The range of own use discount of a significant proportion is 10 per cent to 25 per cent.  In the present case, where the defendant’s own use proportion is estimated to be about 36 per cent, the appropriate sentence discount would be 14 per cent.

39.Trafficking in cocaine is as culpable as trafficking in heroin.  The basic starting point for trafficking in more than 10 grammes but no more than 50 grammes of cocaine in terms of pure quantity is 5 to 8 years’ imprisonment.

40.The 23.6 grammes of mixture in the present case contained 18.8 grammes of cocaine.  The basic starting point should be one of 5 years and 8 months’ imprisonment, ie 68 months’ imprisonment.

41.The Court of Appeal says in paragraph 30 of Shah Syed Arif as follows:-

“...those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities are required to behave themselves and abide by the laws of this jurisdiction. If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime”.

The Court of Appeal further says:-

“...we drew a distinction between crimes committed by claimants, which do not affect the community at large or have any significant impact on Hong Kong’s reputation, and those which do”.

42.The defendant is an asylum-seeker.  He has been permitted to stay in Hong Kong to make his torture claim.  While his claim was still being processed, he was caught trafficking in dangerous drugs.  The quantity of 23.6 grammes of solid containing 18.8 grammes of cocaine cannot be said to be small or insignificant, even after taking into consideration that the defendant would use about 36 per cent of which for own consumption.  The defendant’s trafficking misdeed was a serious crime and could affect the community. 

43.In Shah Syed Arif, the Court of Appeal adopted a 1-year enhancement to add to the basic sentence of 8 years and 2 months’ imprisonment.  That represented a 12.2 per cent enhancement.  That was not excessive at all and that is the level of enhancement I would adopt in the present case.

44.The basic starting point for the defendant’s trafficking in 18.8 grammes of cocaine (pure quantity speaking) is 68 months’ imprisonment.  I accept the defendant would use up to about 36 per cent of the drugs for his own use.  He is entitled to a 14 per cent discount.  The basic starting point is thus lowered to 58.48 months’ imprisonment.

45.The defendant pleads guilty to the charge of trafficking only just before the trial is to start.  He is thus entitled to only 20 per cent discount for his guilty plea, resulting in a basic pleading guilty sentence of 46.78 months’ imprisonment.

46.That sentence will be enhanced due to the fact that the defendant was an asylum-seeker at the time of his trafficking, which offence was serious and could affect the community.  The enhancement is worked out to be 12.2 per cent.  That would bring the final pleading guilty sentence up to 52.48 months’ imprisonment, which would be expressed as 52 months and 2 weeks’ imprisonment. I thus sentence the defendant to prison for 52 months and 2 weeks.