HKSAR v. Haque Aamir

DCCC 157/2019

[2020] HKDC 1259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 157 OF 2019

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REASONS FOR SENTENCE

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1.The defendant stands convicted after trial of one charge of trafficking in 9.84 grammes of a solid containing 2.90 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in my reasons for verdict handed down today.  In summary at around 0234 hours on 4 October 2017 PC 19566 was patrolling in uniform together with his colleagues in Middle Road, Tsim Sha Tsui when he saw the defendant and another male called Mohammad Mohsan Fiaz leaning against a concrete barrier on the opposite side of the road. 

3.On seeing the police officers the defendant and Fiaz turned away and walked in different directions.  PC 19566 approached the defendant while PC 21352 approached Fiaz.  When PC 19566 was about two meters from the defendant, he saw the defendant take out a red and white Marlboro cigarette packet from his right front trouser pocket and drop the packet on the ground. 

4.PC 19566 stopped the defendant and picked up the cigarette packet inside which was twenty re-sealable plastic bags containing the cocaine.  PC 21352 stopped Fiaz who was found in possession of cannabis.

5.The defendant and Fiaz were then arrested for trafficking in a dangerous drug. Fiaz was also arrested for possession of cannabis. 

6.On the evidence I was satisfied the only inference to draw was that the defendant was in possession of the cocaine knowing it was a dangerous drug and taking into account the defendant was intercepted on the street in the early hours of 4 October 2017; the cocaine was contained in twenty re-sealable plastic bags; the defendant is a Form 8 holder who is prohibited from working and therefore has limited income to purchase cocaine, the street value of which was $12,900, the defendant possessed the cocaine for the purpose of trafficking. 

Mitigation

7.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Donald, including that the defendant, who is 26, came to Hong Kong in 2013 and has a clear record.

8.The defendant is a Form 8 recognizance holder.   Mr Donald informs the court that the defendant has applied for judicial review of the refusal of his non-refoulement claim.

Guidelines

9.The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

10.On a purely arithmetical approach a starting point of just over 2 years and 10 months’ imprisonment would be appropriate for trafficking in 2.90 grammes of cocaine.  Taking into account this is the defendant’s first drug conviction I adopt a lower starting point of 2 years and 9 months’ imprisonment. 

Commission of offences by refugees or torture claimants

11.The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  Trafficking in drugs clearly affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.

12.In HKSAR v Ali Saif the Court of Appeal said that for a serious offence of trafficking in drugs before the District Court or High Court they would not expect an enhancement for this factor to be less than 6 months’ imprisonment[4].   In HKSAR v Butt Muhammad Gulzar, the Court of Appeal stated that it would be quite wrong to trivialize trafficking in dangerous drugs by Form 8 recognizance holders just because only small quantities were involved[5].

13.I enhance the sentence by 6 months to 3 years and 3 months’ imprisonment. 

Delay

14.Mr Donald submits account should be taken of the delay in bringing the case to trial. 

15.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt and whether the time taken to bring the case to court was longer than necessary[6].

16.The defendant was arrested on 4 October 2017 and first appeared in court on 28 February 2019.  Reasons for the time taken to charge and bring the defendant to court were given in the application for disclosure.

17.After the case was transferred to the District Court there was various adjournments at the request of both the prosecution and the defence before the case was set down for trial to commence on 4 December 2019.  The trial was re-fixed to 23 January 2020.   On that day the defendant was admitted to hospital.  The trial was therefore adjourned.  Due to the intervening General Adjournment Period new trial dates were only fixed in May this year.  The trial commenced on 5 August.

18.I am satisfied I should take into account that over three years have elapsed since the defendant was arrested[7]. I reduce the sentence by 1 month to 3 years and 2 months’ imprisonment.

19.There are no grounds to further reduce the sentence.  The defendant is convicted and sentenced to 3 years and 2 months’ imprisonment.