HKSAR v. Mohabub Zaman Mithu

CACC 313/2019

[2020] HKCA 219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 313 OF 2019

(ON APPEAL FROM DCCC NO 231 OF 2019)

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J U D G M E N T

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1.The applicant seeks leave to appeal against his sentence of 35 months’ imprisonment imposed upon him by HH District Judge D Yau (the judge) on 15 October 2019, following his plea of guilty to a charge of trafficking in dangerous drugs, namely 7.33 grammes of a powder containing 4.98 grammes of cocaine and 8 tablets containing 1.32 grammes of 3,4-methylenedioxymethamphetamine.

2.On 8 January 2019, the applicant was observed by a police officer acting suspiciously outside a building situated at Morrison Street, Sheung Wan.  He was stopped by the police officer for inquiries and searched.  The police officer found in his wallet 5 empty resealable plastic bags and concealed in his underpants 9 packets of cocaine and a packet of 8 tablets of ecstasy.  He had in his possession a total of $3,228.50 cash and a mobile phone.  In an interview with the police he claimed that the drugs seized were for his self-consumption.  The total estimated market value of the drugs was $8,734.

3.When he entered his plea of guilty to the charge he admitted that he possessed the drugs seized for the purpose of trafficking.

4.The applicant is a Bangladesh national, who came to Hong Kong in 2007 as an asylum seeker.  He was a Form 8 recognizance holder at the time of the offence.  In mitigation, it was submitted that he was a drug abuser who would fund his drug habit with money from his family and friends. It was confirmed that he tested positive for the presence of cocaine and ecstasy upon his arrest.  Although the applicant claimed in his interview with the police that all the drugs seized were for his own consumption, it was submitted that in fact one third were for his own consumption. 

5.It was noted that the applicant had 5 previous convictions.  In November 2014, he was convicted of trafficking in a dangerous drug and possession of an offensive weapon in a public place for which he received a total sentence of 5 years’ imprisonment.  He was released from jail custody on 10 July 2017.

6.It was acknowledged that the applicant committed the offence whilst on police bail in relation to an unrelated matter.

7.In sentencing the applicant, the judge took into account that the offence involved trafficking in two types of drugs, namely cocaine and ecstasy.  He adopted the combined approach since more than one type of drug was involved.  Guided by the sentencing tariffs for cocaine and ecstasy, he adopted a notional starting point of 45 months’ imprisonment.  See R v Lau Tak-ming [1990] 2 HKLR370 and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  He checked to make sure that this was a just and appropriate sentence for the nature and quantity of drugs involved.  See HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.

8.The judge enhanced the notional starting point by 12 months for the following aggravating features.  Of the fact that the applicant was a Form 8 recognizance holder at the time of the offence, he enhanced the sentence by 6 months in accordance with HKSAR v Ali Saif [2018] 6 HKC 19.  Of the fact that this was the applicant’s second conviction for trafficking in a dangerous drug he enhanced the sentence by 3 months.  Of the fact that the applicant committed the present offence whilst he was on police bail for another unrelated offence he enhanced the sentence by 3 months.

9.The judge carefully evaluated the issue of whether some of the drugs were for the applicant’s self-consumption.  He considered the factors laid down in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, and determined that a significant proportion of the drugs might be for the applicant’s self-consumption.  Taking into account the guidance in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, as to the amount of discount for self-consumption, he granted the applicant a 10% discount on the notional starting point.  This reduced the notional starting point to 40.5 months’ imprisonment which was enhanced by 12 months for the aggravating features to 52.5 months’ imprisonment. 

10.The judge reduced the notional starting point by one third for the applicant’s guilty plea to 35 months’ imprisonment.

11.The applicant in his application for leave to appeal against his sentence simply complains that the sentence was “too much”. In the leave hearing he specifically complains that he is aware of other defendants who have been convicted of trafficking in a greater quantity of drugs and yet have received a lesser sentence than he has.  As this Court has said time and again no two cases are alike, and little utility is gained by comparing the sentence in one case with the sentence in another unrelated case.  In the present case, the applicant was trafficking in two types of drugs and there were a number of aggravating features that warranted an enhancement of his sentence.  There is no substance to this complaint.

12.The applicant next complains that he is aware of other defendants who were Form 8 recognizance holders at the time of their offence who only received 3 months’ enhancement for this factor.  The judge specifically referred to the authority of Ali Saif.  In that case Macrae VP, giving the judgment of the court, explained that it was neither prudent nor possible to issue guidelines in respect of the enhancement of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases.  He noted, however, that whilst it was a matter which was best left to the discretion of the sentencing judges, it was expected that an enhancement in sentence for this factor should not be less than 6 months in respect to the serious offence of trafficking in dangerous drugs in any case before the District Court or the High Court.  No complaint can be levelled against the judge in exercising his sentencing discretion by following the guideline in this case.

13.The applicant finally complains that 10% discount for self-consumption was given before the enhancements for the aggravating features rather than after them.  Had the judge done as suggested by the applicant the sentence would have resulted in 34.2 months’ imprisonment. The difference in the sentences is slight but it would be preferred that any discounts to be given should be made after the notional starting point is determined by incorporating any enhancements for aggravating factors.

14.I am not satisfied that the applicant has reasonable grounds in his appeal against sentence.  I have taken into account the totality of the enhancements and the overall sentence, and in light of the circumstances of the offence and offender, there is no cause for complaint for the resultant sentence of 35 months’ imprisonment.

15.It needs to be emphasised, as it was a long time ago by this Court in Kan Chik Tung v R [1963] HKLR 721, that appellate courts do not “prune sentences”, but rather decide whether “the sentence passed by the court of trial is either wrong in principle or is quite clearly excessive”.  It also needs to be appreciated that sentencing is an art not a science, which admits of no single correct answer, and the task of appellate courts, on an appeal against sentence, is to examine whether the sentencing court has fallen into any appealable error.

16.It follows from what I have said that the applicant is refused leave to appeal against his sentence.

17.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.

Miss Ranee Khubchandani, SPP (Ag) of the Department of Justice, for the respondent

The applicant appeared in person