HKSAR v. Mohammad Shafiq

HCCC 383/2019

[2020] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 383 OF 2019

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REASONS FOR SENTENCE

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Reasons for sentence

1.The defendant pleaded guilty to one count of trafficking in dangerous drugs before a magistrate and was committed on 11 November 2019 to the Court of First Instance for sentence.

2.He confirmed his plea of guilty and his admission to the Summary of Facts before me.

Summary of facts

3.At around 2:20pm on 27 January 2019, the defendant was approached by plainclothes police officers in the corridor on the 12^th Floor of Wah Mei House, Wah Fu (I) Estate, while he was looking towards Room 1217.  The defendant had a plastic bag in his left hand.  The officer declared his police identity and requested to make enquiries.  The defendant ignored the request and walked away from the officer towards Room 1216.

4.The defendant was stopped by the officer outside Room 1216 when he tossed the plastic bag through the grill of the metal gate into the space between the gate and the wooden door of the room.  Some white powder spilled out from the plastic bag on to the floor.  This spillage was later collected by a police officer.

5.The defendant was arrested.  In the subsequent cautioned interview, he exercised his right of silence.

6.Cash of $506.70 and a mobile phone were found on the defendant upon search.

7.The contents of the plastic bag and the spilled white powder were later confirmed to consist of a total of 26.04 grammes of a solid containing 24.74 grammes of methamphetamine hydrochloride (commonly known as the dangerous drug “ice”).

Previous convictions

8.The defendant has nine convictions from six court appearances.  This is his first drug related offence.  His last convictions were on 7 September 2018 when he was sentenced to a total of four weeks’ imprisonment for criminal damage and indecent assault.

Mitigation

9.The defendant was born in Pakistan.  He is 44 years old and a holder of Hong Kong Identity Card.  He is married and has three children, who are all living in England.  The defendant worked as a machinery operator after he graduated Form 5, and had had different jobs up to working as a security guard in 2011.  He had been unemployed for the past five years.  At the time of the offence he was unemployed and was receiving CSSA.

10.The defendant claims to have been using dangerous drugs since 2013.  It was his case that half of the “ice” found in his possession that day were for his self‑consumption.

11.The defendant’s acute family problem led to his separation with his wife and children.  He also lost his mother in 2013, with whom he was very close.  It was then that the defendant had begun to experiment in dangerous drugs.

12.The defendant’s drug habit escalated and he became a regular drug user in 2016, consuming drugs on a daily basis.  By the time of his arrest in January 2019, he was heavily dependent on drugs.

13.Despite being a drug user, the defendant has no convictions related to dangerous drugs.  The defendant’s urine tested positive for amphetamine, as shown in the test conducted on 28 February 2019.

14.The defendant says prior to his arrest, he was consuming about 0.5 grammes of ice a day on average.  He would consume “ice” about four times per day.  The defendant admitted that he was trafficking to feed his drug addiction.

15.Mr Mughal sought a discount on the defendant’s sentence on the basis of some of the “ice” being for the defendant’s self‑consumption.  The only evidence the defendant relies upon is the said urine test.

16.Mr Mughal submitted that the defendant said that the drugs would last him about two months.  When the court pointed out that if this is correct, on the defendant’s own account of 0.5 grammes per day, the full 29 grammes of “ice” would have been for his self‑consumption, Mr Mughal confirmed that the defendant maintains his plea of guilty to the charge and that he did engage in trafficking.

Sentence

17.The sentencing guidelines for trafficking in methamphetamine hydrochloride are found in the case of HKSAR v Tam Yi‑chun, CACC 524/2011. The sentencing range for trafficking between 10 and 70 grammes of “ice” is 7 to 11 years’ imprisonment.

18.An arithmetical application of the tariff sentence to 24.74 grammes of “ice” would lead to a starting point of 95 months’ imprisonment.  This is the starting point that I adopt.

Self-consumption

19.It was the defendant’s assertion that half of the “ice” that was in his possession was for his self‑consumption, as such, he should be entitled to a discount in sentence.

20.It is trite law that if a “significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking”[1], the court has the discretion to grant a discount in sentence.  The proportion being a significant one is the threshold for discount.

21.After Mr Mughal’s attention was drawn to the requirement, and upon my indication that I was not prepared to accept that a significant proportion of the drugs were for the defendant’s self‑consumption based merely on counsel’s submissions, I invited Mr Mughal to take instructions and to advise the defendant as to whether he would like to give evidence on this issue.

22.The matter was stood down for a few hours.  Upon return, Mr Mughal informed the court that the defendant does not wish to give evidence and wishes to withdraw his assertion that a significant proportion of the “ice” in his possession was for his self‑consumption.

23.Upon the defendant’s withdrawal, there no longer is the need or basis for me to deal with the issue of whether to grant him a discount on that basis, and as such there is to be no discount on the basis of self‑consumption.

Final sentence

24.There being no aggravating factors and no mitigating factors other than the defendant’s timely plea of guilty, the defendant is sentenced to 63 months and 10 days’ imprisonment upon granting him the full one‑third discount after plea, or five years three months and ten days.

Mr Fergus Chau, SPP, of the Department of Justice, for the Respondent

Mr Hanif Mohamed Mughal, instructed by Tse Yuen Ting Wong, assigned by Director of Legal Aid, for the Defendant