HKSAR v. Sohag Howlader

HCCC 399/2019

[2021] HKCFI 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 399 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Sohag Howlader, was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded not guilty and was convicted after trial.

Facts of the case

The facts of this case is fairly straightforward. On 28 April 2019, a team of police officers from Team 1 of the Special Duties Squad of the Yau Tsim District executed a search warrant at a premises situated at Room C, 3rd Floor, No 23 Wing Kwong Street, To Kwa Wan, which was the home address of the defendant.

On the bedside table inside the defendant’s bedroom, the police found a white plastic bag containing four resealable bags which in turn contained substance suspected to be dangerous drugs. The defendant was arrested for trafficking in dangerous drugs.

Upon examination by the government chemist, the contents of the four resealable bags were confirmed to be 169 grammes of a powder containing 17.9 grammes of cocaine and 67.3 grammes of a crystalline solid containing 66.3 grammes of methamphetamine hydrochloride, which is commonly known as ‘Ice’.

The street value of the cocaine was HK$185,000 and of the ‘Ice’ was HK$38,000.

Background and Mitigation

The defendant is a Bangladeshi born in May 1977, so he is almost 44 years of age. He claimed to have attained higher secondary education and had worked in the construction industry. He is married and his son has passed away.

He came to Hong Kong in 2004 and became an asylum seeker holding a Form 8 Recognizance. As a Form 8 Recognizance holder, he is not allowed to work in Hong Kong and has been relying on the ISS International Social Services and charity to support him.

The defendant is not a man with a clear record. In 2006, he was convicted of breach of condition of stay and was sentenced to 4 weeks’ imprisonment. In 2008, he was convicted of trafficking in a dangerous drug and was sentenced to 4 months’ imprisonment. And in 2014, for the offence of assault occasioning actual bodily harm, he was sentenced to 4 weeks’ imprisonment.

In mitigation, Mr Donald and Ms Tsang, on behalf of the defendant, submitted that a combined approach to take into account the two drugs would be appropriate. Ms Tsang has very helpfully prepared a list of tables showing the three tests normally adopted for the sentencing of trafficking more than one kind of drugs: The conversion test, the ratio test and the absurdity test.

Mr Donald accepted that the defendant was a Form 8 holder which amounts to an aggravating factor to enhance the sentence. Further, that the defendant was found guilty after trial, so there is no ground for reducing his sentence on account of plea.

Consideration of the sentence

Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be sentenced for life and to a fine of $5 million. For the trafficking of more than one kind of drugs, there are two sentencing approach open to the sentencing judge. One is the individual approach and the other is the combined approach. So I will first consider the appropriate starting point for each drug before deciding which approach to adopt.

For the trafficking of ‘Ice’, the guidelines set down by the Court of Appeal in the case of Tam Yi Chun is applicable. The ‘Ice’ involved here amounts to 66.3 grammes which falls under the band of 10 to 70 grammes of ‘Ice’ with a starting point between 7 to 11 years. A starting point of 10 years and 9 months’ imprisonment is appropriate.

The quantity of cocaine involved in this case amounts to 17.9 grammes which falls into the 10 to 50 grammes with a starting point of 5 to 8 years. That is the case of Pedro Nel Rojas adopting the guidelines in Lau Tak Ming. So a starting point of 5 years and 7 months’ imprisonment would be appropriate for the amount of cocaine.

In the circumstances of the present case, I will adopt the combined approach, using ‘Ice’ as the basis and adjust the starting point after taking into account the not insignificant quantity of cocaine.

Now, in my view, if all the drugs were ‘Ice’, that would be a total of 84.2 grammes, 17.9 plus 66.3 grammes. So 84.2 grammes of ‘Ice’ would have attracted a starting point of 11 years and 3 months.

I have checked the conversion and ratio test prepared by the defence. For the ratio test, the starting point would be 10 years and 9 months. For conversion test, if converted to ‘Ice’, the sentence is 11 years, but if converted to cocaine, the starting point will be 11 years and 2 months.

So having considered all these figures, I am of the view that a starting point of 11 years is appropriate here for both dangerous drugs. That also take into account more than one drug was being trafficked.

The defendant is not a first offender and one of the three previous convictions was for a similar offence, that is trafficking in dangerous drugs. However, bearing in mind that he was sentenced to a rather short period of imprisonment for that offence which occurred in 2008, the circumstances of the offence does not appear to be too serious, so I will not enhance the starting point because of his previous conviction.

The defendant is a Form 8 holder which is a factor the court needs to take into account to enhance the sentence as the defendant betrayed the trust placed in him by the people of Hong Kong. And then such betrayal impacted on the lives of the citizens of Hong Kong and the reputation of Hong Kong. That is the case of Ali Saif. So I will enhance the sentence by 9 months.

So the actual sentence for the offence of trafficking in dangerous drugs is 11 years and 9 months. There are clearly no grounds to reduce such a sentence.