HKSAR v. Jaman

HCCC 37/2020

[2020] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 37 OF 2020

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant faced one count of trafficking in dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and is committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

On 24 November 2018, the police mounted an anti-narcotics operation on the 4th-floor unit in Yau Ma Tei. At around 1815 hours, 6.15 pm, the defendant was seen entering the unit in question. Armed with a search warrant, the police gained entry to the unlocked unit and laid ambush. The unit was subdivided into seven rooms from Rooms A to G.

At about 1925 hours, police executed the warrant. The police knocked on the door of Room F. The police heard noises from the room but nobody opened the door. The police then broke into Room F. Upon entry, the police saw the defendant in the toilet pouring down something into the toilet bowl. The defendant was immediately subdued.

140 grammes of herbal cannabis in herbal form and a plastic bag containing 0.02 gramme of a solid containing MDMA was found inside the toilet bowl. Then lying on the floor of the toilet were the following:

(a) five plastic bags containing a total of 149 grammes of a solid containing 129 grammes of ketamine;

(b) a total of 313 tablets containing a total of 35.7 grammes of what is called 4‑chloroethcathinone;

(c) a plastic bag containing 0.24 grammes of a solid containing 0.07 gramme of MDMA and 25 tablet fragments containing a total of 3.53 grammes of MDMA;

(d) a plastic bag containing 345 grammes of a solid containing 238 grammes of MDMA;

(e) a plastic bag containing 0.56 gramme of a solid containing 0.28 gramme of heroin hydrochloride; and

(f) a plastic bag containing four plastic tubes containing a total of 15 millilitres of a liquid containing 0.03 gramme of a solid, upon drying, containing ketamine.

The defendant was arrested for trafficking in dangerous drugs. He was not cautioned due to the language barrier.

The following items were found on the bed in Room F:

(a) a plastic bag containing 0.7 gramme of a solid containing 0.51 gramme of MDMA;

(b) a plastic bag containing 0.67 gramme of a solid containing 0.58 gramme of ketamine;

(c) an electronic scale; and

(d) a plastic bag containing wads of transparent resealable plastic bags.

So the total dangerous drugs seized in Room F were 129.58 grammes of ketamine, 140 grammes of herbal cannabis in herbal form, 242.11 grammes of MDMA, 35.7 grammes of this 4‑chloroethcathinone and 0.28 gramme of heroin hydrochloride. The retail total value of the drugs seized was about HK$114,782.

The defendant was found in possession of HK$2,520, a mobile phone and an Octopus card.

A video-recorded interview was conducted. Under caution, the defendant said, among other things:

(a) He came to Hong Kong in September 2015.

(b) He had been living in Room F for four to five days. His friend, Khaleqe, asked him to live there.

(c) Khaleqe brought the dangerous drugs to Room F. He helped Khaleqe to deliver drugs found in Room F to various places.

(d) He put the drugs in plastic bags and wrapped them with tissue papers before making deliveries.

(e) He contacted Khaleqe with the mobile phone seized from him; and

(f) The electronic scales and the resealable bags were already in Room F when he moved in.

The defendant is a Form 8 holder. He admitted that he possessed the dangerous drugs seized in Room F for the purpose of trafficking.

Background and mitigation

The defendant is a 29‑year‑old Bangladeshi who arrived in Hong Kong in 2015 and is currently a Form 8 holder. He was a farmer back in Bangladesh. His mother and younger sister still live there. His three brothers are living in Middle East and Malaysia. The defendant is not lawfully employable in Hong Kong and has been relying on assistance from ISS.

Mr Richard Donald, counsel for the defendant, submitted that the defendant had been law-abiding all along. However, when the defendant learnt that his mother was sick and was in intensive care with heart problems, he was desperate to get some money to help her out. It was under such circumstances that he became involved in trafficking in dangerous drugs.

The defendant has written a letter to this Court expressing his remorse in having committed the present offence and asked for forgiveness and a chance to be good again. Mr Donald also referred me to the relevant authorities on the sentencing of dangerous drugs involved in this case, submitting that a combined approach should be adopted, and it was also conceded by Mr Donald that there are two aggravating factors in this case: the defendant is a Form 8 holder and more than two types of dangerous drugs are involved here.

Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and to imprisonment for life. The defendant was convicted of trafficking more than one kind of drugs, and the circumstances of the offence are serious. For the trafficking of more than one kind of drugs, there are two sentencing approaches open to the sentencing judge: individual one or the combined one. So I will first look at the appropriate starting point for each drug before deciding which approach is better, bearing in mind that no matter which approach is adopted, it is the overall sentence that is important.

Appropriate starting point for heroin

According to the guidelines in the R v Lau Tak Ming, trafficking up to 10 grammes of heroin, the starting point after trial is 2 to 5 years. Although the amount involved here is 0.28 grammes, the starting point should not be lower than 18 months.

Appropriate starting point for ketamine and MDMA

In the case of Secretary for Justice v Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine and MDMA. The quantity of ketamine involved is 129.58 grammes, and for MDMA, 242.11 grammes, so making a total of 371.69 grammes which fits into the band of 300 to 600 grammes, with a starting point between 9 to 12 years.

Appropriate starting point for this 4‑chloroethcathinone

There are no guidelines for this particular drug but in the case of HKSAR v Abdou Issaka, CACC 142/2019, Maggie Poon J sitting on the Court of Appeal dismissed the applicant’s application for leave to appeal against sentence, and it is noted that the trial judge accepted that this particular drug was similar in nature to MDMA, and Poon J made a comment that it was agreed that the tariff in respect of ‘Ecstasy’ applies to this drug.

So adding this 35.7 grammes to the combined quantity of 371.69 grammes of ketamine and MDMA, the total quantity is 407.39. That is 129.58 plus 242.11 plus 35.7, and it still falls into the band of 300 to 600 grammes with the starting point between 9 to 12 years, and I am of the view that the appropriate starting point is one of 10 years.

Appropriate starting point for herbal cannabis

The cannabis involved here are 140 grammes of the herbal cannabis. In the case of Attorney General v Chan Chi Man, guidelines were given for the trafficking of cannabis resin which was four times more potent than herbal cannabis. So adjustments need to be made, and the guideline for trafficking under 2,000 grammes of cannabis resin was up to 16 months. So the trafficking of the less potent herbal cannabis is up to 4 months. That is the case of the Attorney General v Tuen Shui Ming and also the case of HKSAR v Chor Lui.

The approach to be adopted

In this case, as the sentencing guideline in Hii Siew Cheng is applicable to ketamine, MDMA, and the drug the 4-chloroethcathinone, and I have already combined the three to arrive at a total starting point of 10 years, I think it is fair for me to make an upward adjustment where appropriate to take into account the other two drugs, heroin and cannabis; in other words, the combined approach.

Neither the heroin nor the cannabis can be said to be of significant amount. Nevertheless, the presence allowed the defendant the ability to provide a bigger variety of dangerous drugs to customers. So I will make an upward adjustment of 1 year, making a total pre-deduction starting point of 11 years.

The defendant is a Form 8 holder or Form 8 recognisance holder, which makes it an aggravating factor when he committed crime here in Hong Kong, in particular, such a serious crime as trafficking in dangerous drugs. I am of the view that an enhancement of 9 months is appropriate, bearing in mind that the defendant dealt with a cocktail of drugs here that (see the case of HKSAR v Ali Saif).

So after the enhancement, the starting point is one of 11 years and 9 months. The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. With such a discount, the sentence will be one of 7 years and 10 months’ imprisonment. There are no other grounds that I can see to reduce the sentence.