HKSAR v. Robin

DCCC 784/2020

[2020] HKDC 1173

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 784 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of the offence are that the defendant, on 6 May 2020, at the lift lobby of Block B, Chungking Mansions, in Tsim Sha Tsui, Kowloon, unlawfully trafficked in dangerous drugs, namely 198.63 grammes of cannabis in herbal form, 1.85 grammes of a crystalline solid containing 1.81 grammes of ‘Ice’, 44 tablets, 2 tablet fragments and 1.15 grammes of tablet fragments containing 8.51 grammes of ‘Ecstasy’, 0.35 grammes of a solid containing 0.27 grammes of ‘Ecstasy’, 0.51 grammes of a plant material containing traces of psilocin, 6 pieces of blotter paper containing traces of LSD or ‘Acid’, and lastly, 0.48 grammes of a solid containing 0.4 grammes of ketamine.

3.The defendant was trafficking a total of six different types of dangerous drugs.  Both LSD and psilocin are two of the most commonly used psychedelics.  Psilocin is often referred to as ‘psychedelic mushrooms’ or ‘magic mushrooms’.

4.The facts are straightforward.  At about lunchtime on 6 May 2020, police officers saw the defendant coming out from the lift at the lift lobby on the Ground Floor of Block B of Chungking Mansions.  He was carrying a green plastic bag and looked suspicious.  He was therefore intercepted and in that green bag the police found all the drugs of this trafficking charge.

5.He was also in possession of one mobile phone with four SIM cards, $46 and 10 keys.

6.The defendant agrees that the estimated street value of all the drugs seized was around $48,251.

7.Under caution, and with the assistance of an interpreter, the defendant told the police that an unknown male had given him that green plastic bag that day when he went to the premises for food.  He did not know what was inside the bag, nor did he know why the male gave him that bag.  He nevertheless took possession of the bag and took the lift downstairs to the street level.

Mitigation

8.The defendant is from Bangladesh, single and now 21 years old.  He left school when he was 11 years old and comes from a farming background.  He is in Hong Kong seeking asylum.  Everything that can be said on the defendant’s behalf has been put forward.  His best mitigation is his plea of guilty.

9.It is recognised by the defendant that it is an aggravating factor when an asylum seeker commits a serious offence in Hong Kong and is convicted.  It is an aggravating factor that will enhance the starting point for this charge.

10.The defendant was asked to deliver the bag by a Pakistani man somewhere locally.  He now says he knew the bag contained dangerous drugs but did not know the contents or the variety in the bag.  The defendant’s plea indicates his remorse and I have been asked to take into account his age at the time of the offence.

Trafficking guidelines

11.Trafficking in a dangerous drug is a serious offence.  On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.  Mr Hotten for the defendant has also taken me through all the relevant authorities with guidelines for sentencing those that traffic cannabis, ‘Ice’, ‘Ecstasy’ and ketamine.  He submits that the 0.51 grammes of psilocin and 6 blotter papers of LSD are of a de minimis amount as far as sentencing is concerned.

12.Where there is a cocktail of drugs in one charge of unlawful trafficking, there are two approaches to sentencing in this situation, namely the individual approach and the combined approach.  Often it is the combined approach that produces the more realistic sentence.  Individual approaches often produce sentences that far exceeds the criminality of the defendant’s crime.  It would be sensible to take a combined approach here where most of the drugs will be converted into the quantity of either the most serious or the most prevalent of the drugs.  Here it would be ‘Ice’.  I have referred myself to HKSAR v Leung Chun Pong [2009] 6 HKC 272 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443.

13.I have also referred to the more recent case of HKSAR v Islam S M Majharul, CACC 67/2019.  In this case, the Court of Appeal again reiterates the methodology in sentencing those trafficking two or more different types of drugs.  The methodology of this combined approach is to calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drug.

14.In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal held that the court should take the most serious drug and adjust it upwards for the other drugs.  The court there discussed three means of cross-checking whether the sentence was manifestly excessive.  The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test.  The Court of Appeal has decided that where up to 10 grammes of ‘Ice’ is trafficked, the starting point should be between 3 to 7 years’ imprisonment.

15.I have been referred to HKSAR v Tam Yi Chun, [2014] 3 HKLRD 691.  Here, there is 1.81 grammes of ‘Ice’ which would mathematically attract a 3 year and 9 month starting point.  Here, there is a total of 8.78 grammes of ‘Ecstasy’ and 0.4 grammes of ketamine, which, if I add together, totals 9.18 grammes.  I add them together because the sentencing guidelines contained in the Secretary For Justice v Hii Siew Cheng [2009] 1 HKLRD 1 have been held to apply to both ‘Ecstasy’ and ketamine.  Where between 1 to 10 grammes is trafficked, the starting point should be between 2 to 4 years.  Here, 9.18 grammes would mathematically attract a starting point of 3 years and 10 months.  Although the starting points I have calculated above differ by only a month, ‘Ice’ is the more serious and more potent of all three drugs, I therefore take ‘Ice’ as the base for sentencing.  If I were to convert the ‘Ecstasy’ and ketamine into ‘Ice’, it would be equivalent to 2.04 grammes of ‘Ice’.  2.04 grammes added to 1.81 grammes gives a total of 3.85 grammes and a mathematical starting point of 4 years and 6 months.  I find this to be the appropriate starting point.

16.There are three other types of drugs, of which there was 198.63 grammes of cannabis in herbal form which by itself would attract a short sentence.  I accept that the psychedelic magic mushroom has been measured in traces but there are also 6 blotter papers containing LSD as well.  In my view, it is not appropriate to just ignore the other three types of drugs for the purposes of sentencing, but because of their quantities, I will only add 1 month to the starting point of 4 years and 6 months.

17.There is one further aggravating factor and that is the defendant is not a Hong Kong resident, but a guest here awaiting the determination of refugee status and resettlement in another country if successful.  Hong Kong is entitled to expect such a person to remain law abiding during the course of this process, and it is an aggravating factor that the defendant has committed such a serious offence.  Therefore I will enhance the starting point of now 4 years and 7 months by a further 2 months.

18.I have taken into account mitigation, the defendant’s plea at the earliest opportunity and everything said on his behalf.  Previously he had a clear record and says he has learnt his lesson. He was young, but not so young that it is a factor that carries any significant weight here.

19.I find the appropriate starting point to be one of 4 years and 9 months’ imprisonment and I reduce it by one-third to reflect his plea.  When that discount is applied, it is reduced to 3 years and 2 months’ imprisonment.

20.Accordingly, for this offence, the defendant is sentenced to a total of 3 years and 2 months’ imprisonment.