HKSAR v. Molla Rasidul

HCCC 321/2018

HCCC 322/2018

(Heard together)

[2019] HKCFI 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 321 & 322 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant of HCCC 321/2018, Mr Molla Rasidul, hereinafter referred to as the 1st defendant, pleaded not guilty to one count of trafficking in dangerous drugs. He was convicted by a unanimous jury after trial.

The defendant of HCCC 322/2018, Mr Islam Shafiqul, hereinafter referred to as the 2nd defendant, pleaded guilty in Eastern Magistracy and was committed to the Court of First Instance for sentence on 8 October 2018. He pleaded guilty at the earliest opportunity. They were both jointly charged with the same count.

The facts of this case are as follows: the police executed a search warrant for Flat E6 in Chungking Mansions on 10 July 2017 at about 9.30 pm. They had the premises under observation for 50 minutes before they saw anybody enter or leave. They saw the 1st defendant leaving and immediately apprehended him. After a brief struggle, the 1st defendant was detained.

When the police entered the premises, they found it subdivided into five rooms, one kitchen and three toilets. They found the 2nd defendant at the door of Room 1. There were occupants in several rooms, including 4 and 5. The police found a bag on a table in Room 1 containing five bags containing eight types of dangerous drugs of varying quantities packed in 178 bags and 25 pellets.

They also found a jar with two rolls of cash totalling $36,170. In it, there were two pieces of paper with a record of sorts but one can see references to names of dangerous drugs on them. Similarly, there was a notebook on the table containing words and figures with names of dangerous drugs visible. There was also a bag containing a small electronic scale and many unused small resealable transparent plastic bags. The police also found a calculator.

The 1st defendant was searched and keys to the main gate, main door and Room 1 were found in his pocket as was a mobile and cash of $1,740. In his wallet, there were two pieces of paper, P67, that also contained a record of sorts with references to names of dangerous drugs. The 1st defendant denied that he lived at the premises at the scene.

The 2nd defendant was also searched and the police found $5,070 in his physical possession and three keys: the key for the main gate, main door and Room 1.

The 1st Defendant

The 1st defendant’s video-recorded interview was not challenged and the prosecution admitted it. It showed how inconsistent his evidence was. His evidence was inconsistent in that it differed to his oral evidence in court substantially. In his interview, he could not answer the question directly, in particular, pertinent questions such as why he had a key to the premises and why he was there. There was no admission in the video-recorded interview.

The 1st defendant elected to give evidence and said he was asked by a friend living in Room 5 to deliver a bunch of keys, six to seven keys to that room to his friend’s wife. He met this friend 15 minutes before his arrest downstairs and proceeded upstairs on his own. He used a key to open the main gate and entered. He knocked on Room 5 but there was no answer. He then knocked on Room 4 as he had friends living there but there was also no answer. He was inside the flat five to seven minutes before he left.

When he left he was intercepted by the police. He did try and run away because he did not realize they were police officers and thought they were men related to a previous incident where he was attacked. He did not own the keys found on him, did not know the 2nd defendant well and had never been inside the 2nd defendant’s room, Room 1. Those drugs did not belong to him. The jury clearly did not believe his evidence and found him in possession of the drugs in Room 1 for the purposes of trafficking in them.

The defendant is 30 years old, single, and was born in India. He has been in Hong Kong for 10 years, seeking asylum as a non-refoulement protection claimant. He said in evidence that he was illiterate, could not read or write. He did admit that after 10 years here he spoke simple English and Cantonese.

The defendant has one previous conviction for assaulting a police officer in 2016 when he was sentenced to 3 weeks’ imprisonment. Mr Parry has said all he can say in mitigation on behalf of the 1st defendant.

The 2nd Defendant

The 2nd defendant is 32 years old and born in Bangladesh. He has one previous conviction in January 2017. He was convicted of trafficking in dangerous drugs and sentenced to 3 months’ imprisonment in Kowloon City by Kowloon City Magistracy. He is married with three young children.

His evidence was that he had been living in Room 1, Flat E6 for about three to four months before his arrest. He said that the 1st defendant became his flatmate about two months before his arrest.

The 2nd defendant pleaded guilty at the earliest opportunity and then gave two non-prejudicial statements to the police, indicating his willingness to give evidence against the 1st defendant. It is therefore submitted he is entitled to more than one-third discount for his plea.

The 1st defendant was convicted after trial and after the 2nd defendant gave evidence.

Those who assist the authorities after their arrest are to be encouraged to continue to do so. There is an incentive to be the first to plead guilty and offer to give evidence against a co‑accused. The incentive will take the form of a reduced sentence. A 40 per cent and up to 50 per cent discount has been held appropriate where an accused has provided information which is followed by truthful testimony. His evidence was the only direct evidence.

Mr Mughal submits he should be entitled to the maximum benefit for his assistance. The prosecution’s stance is that he was a no-nonsense witness and the jury did convict the 1st defendant unanimously.

Sentencing Guidelines

We have here eight types of drugs, what can be described as a true cocktail of drugs. In the case of HKSAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. This approach is often preferred and produces a more realistic sentence.

In the combined approach, the court looks at the overall quantity of drugs rather than the individual parcels. The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of any other drugs.

In the authority of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for the other drugs. The court there discussed three means of cross‑checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test and the third was the ratio test. I have also referred myself to several other authorities dealing with cocktails of drugs, including HKSAR v Leung Chun Pong [2009] 6 HKC 672 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443.

I have considered the sentencing guidelines for ‘Ice’, cocaine, heroin, ketamine, ‘Ecstasy’, cannabis resin and cannabis in a herbal form. Sentencing guideline in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 10 and 70 grammes is 7 to 11 years’ imprisonment. Mathematically speaking, the starting point for trafficking in 55.63 grammes of ‘Ice’ is 10 years and 1 month.

As far as cocaine is concerned, the sentencing guideline for that does derive from R v Lau Tak Ming [1990] 2 HKLR 370. The starting point for trafficking between 50 and 200 grammes is 8 to 12 years’ imprisonment. The sentencing guidelines apply to heroin as well as cocaine and in this case, the heroin and cocaine add up to 61.4 grammes. The starting point for the total amount of cocaine and heroin, mathematically speaking, would be 8 years and 4 months’ imprisonment.

As far as ketamine is concerned, according to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the starting point for trafficking in between 1 to 10 grammes is 2 to 4 years’ imprisonment. The Court of Appeal have held that trafficking ‘Ecstasy’ attracts the same tariffs as trafficking ketamine. Therefore I add the total amount of ketamine and ‘Ecstasy’ together in this case and it is 7.25 grammes and therefore, mathematically speaking, the starting point for that amount of narcotics is 3 years and 5 months.

Essentially the quantities of cannabis resin, cannabis in herbal form and the more unknown chloroethcathinone would attract a low sentence compared to the other drugs and could be considered a de minimis amount of drugs here.

If the individual approach was taken, the individual starting point for ‘Ice’, cocaine, ketamine, ‘Ecstasy’ and heroin, five types of drugs added together would make a total of 21 years and 10 months. That would far exceed the criminality of the defendant’s crime. The combined approach is the fairest and appropriate approach here.

‘Ice’ is the more or most serious drug in terms of potency and attracts the highest starting point of all the drugs. Here I take ‘Ice’ as the base for sentencing. If I were to convert the heroin and cocaine into ‘Ice’, it would be the equivalent of 29.56 grammes of ‘Ice’. If I were to convert the ketamine and ‘Ecstasy’ into ‘Ice’, it would be equivalent of 0.97 grammes of ‘Ice’. Therefore the total amount of narcotics to be treated as ‘Ice’ would be 86.16 grammes, which would attract a starting point of 11 years and 3 months. As I have said, I will not take into account the relatively small amounts of the other drugs.

After considering the authorities and the mitigation put forward on behalf of both defendants, I will take the starting point of 11 years and 3 months. There is an aggravating factor here and that is both defendants are non‑refoulement protection claimants convicted of trafficking drugs. The Court of Appeal has endorsed an enhancement of sentence for this serious breach of trust and privilege by a person not normally entitled to be in Hong Kong, someone like the defendants who are here on the strength of a Form 8. This crime not only affects the community at large but has an obvious impact on Hong Kong’s reputation. It was not committed by a Hong Kong resident but by persons not normally entitled to be here and only permitted to remain at liberty within the community whilst their torture claims are being processed.

I have referred myself to the authority of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Ali Saif, CACC 309/2017 which endorses this enhancement. In that last authority the Court of Appeal said they would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in a case before the District Court or the High Court. Having considered the facts of this case, the eight types of drugs and the quantities involved, I find an enhancement of 6 months to be appropriate for this aggravating factor.

Defendants, please stand up. Therefore after careful consideration, the starting point for this offence is 11 years and 9 months. The 1st defendant was convicted after trial unanimously by a jury and I see no mitigation that is worthy of any reduction in that starting point. Therefore the 1st defendant is sentenced to 11 years and 9 months’ imprisonment.

The 2nd defendant pleaded guilty at the committal stage, offered assistance to the police and gave evidence during the 1st defendant’s trial that directly incriminated him. I find he is therefore entitled to a discount of about 45 per cent, which means after that discount is applied he will serve a sentence of 6 years and 6 months. Is that sentence understood?

BENGALI INTERPRETER: D1 understands. D2 understands.