HKSAR v. Chaudhry Mohammad Asif

DCCC 792/2019

[2020] HKDC 327

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 792 OF 2019

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REASONS FOR SENTENCE

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1.Defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

Facts

2.Defendant, a Form 8 Recognizance holder, was stopped by police on 8 April 2019.

3.Upon search, he was found to be in possession of a plastic bag containing 105 grammes of herbal cannabis and another plastic bag containing 9.18 grammes of crystalline solid containing 9.06 grammes of ‘Ice’.

4.Defendant was subsequently arrested.  At time of arrest he had cash of HK$2,485.10, Renminbi ¥15 and two mobile phones.

5.Defendant now admits that he was unlawfully trafficking in the dangerous drugs at the material time.

Criminal record

6.Defendant had one previous conviction, not similar.  He was put on suspended sentence for 3 years.

Mitigation

7.Defendant is aged 28.  He was born in India, with parents and two younger brothers in India.  He lived alone in Hong Kong as a Form 8 Recognizance holder and is unemployed.  He received education up to senior high in secondary school in India.

8.It is submitted by defence counsel that defendant had only one previous conviction, not similar, in Hong Kong and he has a clear record in India.

9.Defence counsel admitted that the most valid mitigating factor is defendant’s own guilty plea. 

10.He referred this court to the case of R v Tuen Shui Ming & Anor [1995] HKCA 36 and he says that, since the tariff of trafficking in cannabis resin under 2,000 grammes attracts sentence up to 16 months’ imprisonment, the 105 grammes of cannabis in herbal form here should attract sentencing starting point of 6 to 10 days’ imprisonment.

11.As for the sentencing starting point for ‘Ice’ seized, defence counsel submitted that the sentencing starting point for the 9.06 grammes of ‘Ice’ in the present case would attract a sentencing starting point of 6 years and 4 months’ imprisonment.

12.Although the present trafficking charge concerned more than one type of dangerous drug, defence counsel urged this court that in view of the cannabis in herbal form seized in this case were only of very small quantity, that this addition would not make any difference to the total sentencing and the court should properly ignore them when computing the sentence[1].

13.Defence counsel also submitted that sentencing tariff are not straitjacket and that sentencing judge, where appropriate, would adopt a lower sentencing starting point or provide additional discount if the mitigatory reasons warrant.

14.In the present case, it is submitted that the defendant was used by his friend as a courier and, being a Form 8 holder, he was vulnerable.  It is also said that he did not benefit or gain from the errands.  He also said defendant is now remorseful for what he has done.

Discussion

15.Trafficking in dangerous drugs is a very serious offence and a person on conviction upon indictment of this offence is liable to life imprisonment and to a fine of 5 million.

16.Following the tariff in the HKSAR v Tam Yi Chun

[2014] 3 HKLRD 691, the 9.06 grammes of ‘Ice’ would attract a sentencing starting point of 79.5 months’ imprisonment.

17.As for the 105 grammes of cannabis in herbal form, the average concentration of THC of cannabis in herbal form is only about one-quarter of that of cannabis resin.  For sentencing purpose, according to the case of Tuen Shui Ming, the 105 grammes of cannabis in herbal form here would be treated as 26 grammes of cannabis resin and the tariff for possession of cannabis resin under 2,000 grammes for the purpose of unlawful trafficking is up to 16 months’ imprisonment.  The 26 grammes of cannabis resin here should attract sentencing starting point of a week.

18.In view of the relatively small quantity of the cannabis in herbal form, this court considers that the sentencing starting point for the drugs seized in the whole case would remain 79.5 months.

19.This court also will not enhance the sentencing starting point by reason of the fact that more than one type of drugs is involved, as the total culpability of the defendant would not be significantly affected as a result of his possessing this extra 105 grammes of cannabis in herbal form.

20.However, defendant is a Form 8 Recognizance holder.  It has been said in numerous cases that defendant has therefore abused the hospitality extended to him by authorities and people of Hong Kong while he seeks asylum here by committing this serious crime which affect Hong Kong’s reputation for order and security of which he seeks to avail himself[2].

This is an aggravating feature in sentencing, for which the court will enhance the sentencing starting point by 7½ months’ imprisonment. The case relied on is the authority cited to me by defence counsel, HKSAR v Ali Saif, CACC 309/2017, bringing the sentencing starting point to 87 months’ imprisonment.

21.Defendant was sentenced to 2 weeks’ imprisonment, suspended for 3 years, on 15 June 2016 in relation to a conviction for breach of condition of stay.  Defendant has therefore committed the serious offence during the suspended sentence period whilst the suspended sentence is still alive.  This is an aggravating factor in sentencing.

22.This court, however, noted that it is already near the end of the period of suspension and, in the circumstances of this case, on this particular occasion, this court is not going to activate the suspended sentence.

23.This court has fully considered all mitigation submitted by defence counsel but the present offence is a very serious one and personal background of defendant is seldom a valid mitigating factor nor the fact that he has a clear record nor the fact that he only plays the role of courier in the whole trafficking process[3] or that he did not benefit from the commission of the offence.  All of these would not warrant further sentencing discount.

24.In the circumstances, the only valid mitigating factor, as submitted by defence counsel, is defendant’s own guilty plea, for which he is entitled to full one-third sentencing discount.

25.Accordingly, defendant is sentenced to 4 years and 10 months’ imprisonment for this offence.