HKSAR v. Miah Sharif (also known as Miah Sharif)

DCCC 340/2020

[2021] HKDC 22

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 340 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The relevant amounts of drug by their narcotic content are 3.99 grammes of cocaine, 0.56 grammes of ketamine and 1.94 grammes of MDMA.

2.The case arises out of an interception and arrest, a stop and search, on 21 February 2020, in the evening, in the Lan Kwai Fong area where the defendant was stopped by police and searched.  The drugs were found on him in some transparent and re-sealable plastic bags.  Also found was the total cash of 26,100 plus two mobile phones.

3.In the defendant’s record of interview, he claimed to be a Form 8 holder, which has been confirmed.  He said various matters about the drugs which appear to be mainly exculpatory.  The market value of the drugs is set out in the Agreed Facts and it is agreed it is in the region of $7,556.  The defendant is in receipt of assistance from the International Social Services, Hong Kong Branch, and has been since 2014.  The defendant has admitted today that he possessed the drugs for the purpose of unlawful trafficking in them.

4.The defendant’s background is as follows.  He is aged 30.  He is what is described as Form 8 recognisance holder born in Bangladesh.  At present he has a clear record in Hong Kong with a resolution of a breach of condition stay of case awaiting the outcome of his claim for asylum.  Clearly he has no employment history in Hong Kong.  He, I am told, is single and has no relatives in Hong Kong.  His family members all reside in Bangladesh.  He will be treated as if he has a clear record by this court.

5.The approach to sentencing is largely governed by guideline sentences.  There are three drugs involved in the case here.  The relevant guideline sentences will be as follows.  For the cocaine, the operative guidelines can be found in Lau Tak Ming [1992] HKLR 370.  Up to 10 grammes leads to a starting point of 2 to 5 years’ imprisonment.  For the ketamine, amounts up to 1 gramme, the sentence is in the discretion of the court.  That is from Secretary For Justice v Hii Siew Cheng [2008] 3 HKC 323.  And then for the MDMA, amounts over 1 gramme up to 10 grammes, the starting point is again 2 to 4 years’ imprisonment.  That is from the same case as the guideline sentence for ketamine.

6.The court here is dealing with a mixture of drugs and there are at least two approaches to sentencing in that kind of mixture.  So it is the individual approach and the combined approach.  The determination of starting point for sentence in the combined approach can be seen from the case of HKSAR v Yip Wai Yin at CACC 80/2003.  The Court of Appeal enjoins the court to look at the overall quantity of drugs rather than individual parcels, taking a global view.  The court is then able to assess realistically and fairly the appropriate sentence.  It seems that that sentencing on the basis of individual drugs and sort of totalling up the totals may lead to absurdity and it is considered better to look at the whole quantity of the cocktail or batch, having regard to the most serious of the various drugs.

7.The methodology recommended is to first calculate the applicable sentence for the more or most serious drug and then adjust the sentence upwards, or downwards, to take into account the significant quantities of the other less serious drugs, so that whatever approach is taken will depend on the circumstances of the case, but it is said that the combined approach will often be the correct one to enable the judge to sentence fairly realistically and in a common sense manner.

8.The total quantity of drugs by my calculation in this case is 6.49 grammes of narcotic content.  It can be seen that the quantities for the ketamine are relatively small.  If the overall quantity is determined under the guideline for cocaine, the starting point for sentence would be around the middle of the 2 to 5-year guideline starting point.  I consider that an appropriate approach to take, which will lead to a starting point for sentence of 42 months’ imprisonment.

9.There is one aggravating factor here which is the defendant’s Form 8 status, which can lead to an increase in the starting point for sentence and should do in this case.  I will add a further 3 months’ imprisonment to reflect that aggravating factor.

10.Besides the defendant’s plea of guilty, which I will calculate soon, there is the fact that the defendant has given a non-prejudicial statement to the police.  The defence put it forward on the basis that they have been informed by the prosecution that such assistance was not useful.  In other words, it was not actionable.  However, the defendant has rendered some assistance and assistance is always valuable, if only in compiling intelligence.  I consider that that is worth some discount from the existing starting point and I will grant the defendant the benefit of a 3-month discount for the assistance he has given, which leads us back to the starting point of 42 months’ imprisonment.  Once the defendant’s one-third discount for his plea of guilty is taken into account, that leads to a final sentence of 28 months’ imprisonment by my calculation.