HKSAR v. Islam Azharul

CACC 98 /2019

[2019] HKCA 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2019

(ON APPEAL FROM DCCC NO 891 OF 2018)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

1.The applicant pleaded guilty in the District Court to a single charge of trafficking unlawfully in dangerous drugs, namely, 24.20 grammes of a solid containing 14.30 grammes of cocaine, 46.50 grammes of cannabis in herbal form, 279.39 grammes of cannabis resin, and 36 tablets and one tablet fragment containing 7.56 grammes of 3,4-methylenedioxymethamphetamine (“MDMA”, commonly known as “Ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.He was sentenced to 5 years’ imprisonment by HH Judge Josiah Lam (“the judge”) on 12 March 2019.  Thereafter, he applied for leave to appeal against sentence (by way of Form XI) on 22 March 2019.

The Facts

3.In the evening of 28 May 2018, the applicant, a non-refoulement claimant and Form 8 recognizance holder from Bangladesh, was intercepted by the police when he came out from his room in a guesthouse in Tsim Sha Tsui.  Upon a search of the shoulder-bag he was carrying, the dangerous drugs which formed the subject matter of the charge were found, contained in over 90 small bags and packets; as well as a knife containing traces of dangerous drugs and an electronic scale. 

4.The applicant remained silent upon arrest and caution.  In a subsequent video-recorded interview under caution, he denied knowledge or ownership of the seized dangerous drugs.  He claimed that he was unemployed with no income; and was not in the habit of taking drugs.  He said that he rented the room from which he was seen emerging and had the key on him.

5.The estimated street value of all of the dangerous drugs seized was just over HK$73,000.

6.The applicant nevertheless admitted at trial that he possessed the dangerous drugs for the purpose of trafficking.  It was expressly accepted on behalf of the applicant, the matter having been stood down for his solicitor to take specific instructions on the matter, that there was no suggestion of there being a significant proportion of the drugs in question for the applicant’s own consumption. A urine test on the applicant upon his admission to Lai Chi Kok Reception Centre did, however, give positive results for amphetamines and cocaine.

Mitigation

7.The applicant was 27 years of age.  He claimed to have been married with three young children in Bangladesh, where he ran a cosmetics shop before coming to Hong Kong. 

8.In respect of the calculation of sentence, the judge was urged to adopt a “combined approach” for the various drugs in question, and not to adopt an overall starting point above the jurisdictional limit of the District Court of 7 years’ imprisonment.

Reasons for sentence

9.Although noting the applicant’s clear record in Hong Kong and his family circumstances, the judge nevertheless considered his trafficking in more than one kind of dangerous drug at the same time to be an aggravating factor.

10.In respect of the four different drug components in the charge, namely 14.30 grammes of cocaine narcotic, 7.56 grammes of MDMA, 279.39 grammes of cannabis resin, and 46.50 grammes of herbal cannabis, the judge stipulated starting points of 5 years and 3 months’ imprisonment for the cocaine[1] and 3 years and 6 months’ imprisonment for the MDMA[2], pursuant to the relevant guidelines.  Since there were no guidelines for trafficking in herbal cannabis, the judge adopted a combined starting point of 3 months’ imprisonment for the total quantity of cannabis resin[3] and herbal cannabis. 

11.The judge then adopted a notional sentence after trial of 7½ years’ imprisonment for the charge as a whole before granting him a full one-third discount for his plea.  In the event, he sentenced the applicant to imprisonment for 5 years.

Grounds of appeal

12.The grounds of appeal aver that the sentence was manifestly excessive because the judge failed adequately to consider the totality of sentence in determining the appropriate notional sentence after trial, and failed to adopt the combined approach in calculating the total sentence, resulting in the 7.56 grammes of MDMA effectively receiving a higher sentence than if it had been cocaine, which was a more potent drug.

13.Mr Marray, on behalf of the applicant at this application, took no issue with the starting points adopted by the judge for the individual dangerous drugs concerned.  However, he submitted that if one were to treat the MDMA as though it were the more serious drug cocaine, the resulting combined quantity of 21.86 grammes of cocaine (namely, by adding 7.56 grammes to 14.30 grammes), would have attracted a notional sentence after trial of 5 years and 10 months’ imprisonment, which was significantly lower than the notional sentence actually adopted of 7½ years’ imprisonment.  It was submitted that the judge’s assessment of the overall notional sentence after trial failed the “absurdity test” referred to in HKSAR v Yip Wai Yin & Anor[4] and HKSAR v Chan Yuk Leong[5].

14.Mr Marray argued that, if one applied the “conversion test”, 7.56 grammes of MDMA would correspond to 3½ years’ imprisonment, which would roughly equate to 2 grammes of cocaine under the sentencing tariffs.  Accordingly, the addition of the 2 grammes to the existing 14.30 grammes of cocaine would result in 16.30 grammes, which mathematically would attract a starting point of 5½ years’ imprisonment.

15.Similarly, if one applied the “ratio test”, the starting point would also be 5½ years’ imprisonment, since the ratio of cocaine to MDMA was about 2:1.  Accordingly, the resulting sentence was manifestly excessive.

Respondent’s submissions

16.Mr Sean, on behalf of the respondent, submitted that the sentencing court should have reflected two significant aggravating factors in the overall sentence.  Firstly, there were four different kinds of drugs involved in the present case, which is a factor recognised by the Court as deserving of an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market that the trafficker in only one kind of drug”[6].  Secondly, the applicant was committing the serious crime of trafficking in dangerous drugs when he was a non-refoulement claimant and Form 8 recognizance holder.  Mr Sean referred to the decision of the Court in HKSAR v SK Hasnainzzaman[7], submitting that the enhancement for the applicant’s status as a Form 8 recognizance holder should not have been less than 6 months’ imprisonment. Yet, while the judge took the first factor into account, he did not mention the second one at all.

17.When, therefore, one took these two aggravating features into account, the starting point adopted by the judge was neither manifestly excessive nor wrong in principle.

Consideration

18.The applicant was intercepted when leaving his room, carrying a large selection of different dangerous drugs with him in his bag.  He was plainly on a mission from the place where he was living or staying to traffic in various kinds of dangerous drugs.  Mr Marray suggests that if one adopts the “combined approach” to sentencing for multiple dangerous drugs, the overall starting point for the four quantities of drugs included in the charge should have been in the region of 5½ years’ imprisonment; although I note that his predecessor at trial, using the same approach, advocated a starting point of 5 years and 10½ months’ imprisonment.  Mr Sean, on the other hand, contends that if one were dealing only with the cocaine and the MDMA, the overall starting point should have been something over 5 years and 8 months’ imprisonment, when viewed arithmetically.  However, if one factored in the cannabis as well, then the starting point should have been in the region of 5 years and 11 months’ imprisonment.

19.I tend to think at this stage, subject to further argument there might be, that an overall starting point in the region of 5 years 9 months’ imprisonment is probably a more realistic one.  If one assumes, therefore, that the overall starting point should have been in the region of 5 years 9 months’ imprisonment, then the question becomes to what extent that starting point should have been enhanced for the two aggravating features present.  Specifically, did they warrant an enhancement of 21 months’ imprisonment, thus taking the notional sentence after trial to 7½ years’ imprisonment?

20.In HKSAR v Ali Saif[8], the Court said of the second aggravating feature highlighted above (the Form 8 factor), at paragraph 17:

“…we should say that we 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 any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non‑refoulement applicants. Furthermore, Form 8 recognizance holders whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

21.In HKSAR v Shah Syed Arif[9], which involved the trafficking of 55.88 grammes of cocaine narcotic with a street value of $145,983 by a Form 8 recognizance holder, the Court applied an enhancement of 12 months’ imprisonment for this factor; whilst in HKSAR v Don Amarasinghalage Don Chandra Janaka[10], in respect of trafficking in 25.91 grammes of methamphetamine hydrochloride narcotic (commonly known as “Ice”) valued at $11,103, the same factor attracted an enhancement from the Court of 9 months’ imprisonment.  Given the circumstances of the present case, involving the trafficking in 14.30 grammes of cocaine narcotic, 7.56 grammes of MDMA and 325.89 grammes of cannabis (in herbal and resin form) valued at $73,472, the sentence on the applicant could have been enhanced by 9 months’ imprisonment for this factor.

22.As for the first aggravating feature (the multiple drugs factor), the applicant was trafficking in both hard and soft drugs.  As such, he was catering to a wider section of the drugs market, which would have included younger customers and teenagers taking MDMA or Ecstasy.  It may be recalled that in the leading case of Secretary for Justice v Hii Siew Cheng[11], in which the Court laid down guidelines for trafficking in Ketamine and Ecstasy, having first received expert evidence about the prevalence and effects of each drug, the Court voiced its conclusion that “the most important features of the evidence are that both drugs are targeted at the young, particularly those under 21”[12].  It would likewise be rather meaningless to consider an enhancement of less than 6 months’ imprisonment for this factor, which is not so much linked to volume or quantity as to the multiplicity of different drugs on offer by the applicant.  I note that in Wan Lau Mei[13], the Court considered a 6‑month enhancement for this factor appropriate on its facts.

23.If these two factors together warranted an enhancement of the starting point in the region of 15 months’ imprisonment, then taking a starting point for the narcotic value of the various dangerous drugs concerned of 5 years 9 months’ imprisonment as a realistic one, the notional sentence after trial should have been in the region of 7 years’ imprisonment. The notional sentence after trial adopted by the judge, before reduction for plea, was, of course, 7½ years’ imprisonment.

24.To the extent that sentencing in drug trafficking cases is primarily an arithmetical exercise, I consider the appeal to be reasonably arguable.  However, it is not purely an arithmetical exercise: the surrounding circumstances of the trafficking are also relevant.  I would therefore caution the applicant that the Court of Appeal may feel it unnecessary to tinker with the sentence when the facts clearly established that the applicant was actively taking this consignment of dangerous drugs out of his home onto the streets for obvious dissemination to members of the public, which would inevitably have included youngsters.  That will, however, be a matter for the Court to consider.

25.For present purposes, I grant the applicant leave to appeal.

Mr Eddie Sean SADPP, of the Department of Justice, for the Respondent

Mr John Marray, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the Applicant