HKSAR v. Haider Sheikh

DCCC 145/2021

[2021] HKDC 795

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 145 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant today. 

3.In summary at around 11:53 a.m. on 1 September 2020 the police were patrolling in Chungking Mansions, Nos 36-44 Nathan Road in Tsim Sha Tsui when they saw the defendant acting furtively at the lift lobby on the 4/F of Block C of Chungking Mansions.

4.The police intercepted the defendant and searched the yellow plastic bag he was carrying.   The police found a red plastic bag and a white plastic bag inside the yellow plastic bag.

5.The red plastic bag contained thirty-six plastic bags containing a total of 100.03 grammes of cannabis in herbal form.

6.The white plastic bag contained:

(a)  seven plastic bags containing a total of 2.60 grammes of a solid containing 2.16 grammes of 3, 4-methylenedioxymethamphetamine (“ecstasy”);

(b)  four plastic bags containing a total of 2.17 grammes of a solid containing 0.18 gramme of methamphetamine (“ice”);

(c)  four plastic bags containing a total of 2.23 grammes of a crystalline solid containing 2.23 grammes of methamphetamine hydrochloride (“ice”);

(d)  three plastic bags containing a total of 0.72 gramme of a solid containing 0.14 gramme of cocaine; and

(e)  fourteen pieces of paper containing traces of lysergide[2].

7.The police also found in the white plastic bag tablets which were not controlled under the Dangerous Drugs Ordinance and thirteen empty re-sealable plastic bags.

8.The estimated market value of the dangerous drugs at the time of seizure was about $22,073.

Mitigation

9.In passing sentence, I have carefully considered the oral and written submissions of Mr McNamara, including that the defendant who is 38, single, came to Hong Kong from India in 2015 and is a Form 8 recognizance holder.  The defendant says after serving his sentence he intends to return to India to look after his mother, his father having passed away in May this year [3].   

10.The defendant says he purchased the drugs for his own consumption a few weeks earlier because they were cheaper; carried them with him because he had nowhere else to keep them; that a proportion of the dangerous drugs were for his own consumption and the rest for sharing with his friends[4].  In court Mr McNamara stated that the defendant purchased the dangerous drugs for about $5,000.

11.As indicated in court I do not accept the bare assertion that the defendant purchased the dangerous drugs a few weeks ago; the reason why he carried the drugs with him; he purchased the drugs for his own consumption and he would share the dangerous drugs with his friends.

12.Mr McNamara having taken instructions from the defendant confirms that the defendant does not wish to give evidence in support of how he came into possession of the dangerous drugs and his claims that he purchased the dangerous drugs for his own consumption and would share the dangerous drugs with his friends. 

Guidelines

13.In HKSAR v Tam Yi Chun the Court of Appeal recast the sentencing guidelines for trafficking in ice[5].  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

14.The courts have equated for sentencing purposes cocaine with heroin[6].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[7].  The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2-5 years’ imprisonment. 

15.In Secretary for Justice v Hii Siew Cheng[8]the Court of Appeal laid down guidelines for trafficking in ketamine and ecstasy.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years’ imprisonment. 

16. In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing cannabis resin [9]. Where the quantity of cannabis resin is under 2,000 grammes sentence after trial is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

17.In calculating the sentence, I disregard the traces of lysergide which I am satisfied do not add to the culpability of the defendant in trafficking in ice, cocaine, ecstasy and cannabis.  

Starting point

18.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 2.41 grammes of ice[10] would be just over 3 years and 11 months’ imprisonment; for 0.14 gramme of cocaine would be 2 years imprisonment; for 2.16 grammes of ecstasy would be just over 2 years and 3 months’ imprisonment and for 100.03 grammes of cannabis in herbal form would be 4 months’ imprisonment.  

19.Applying what has been referred to as the “absurdity test”, having excluded the cannabis from the calculation, a starting point of 8 years and 2 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just over 4 years and 10 months’ imprisonment. 

20.I am satisfied that the “combined” approach to sentence is appropriate and take ice, the most potent drug, as the “base” drug to calculate the starting point.  Taking ice as the base drug I adopt a starting point of 3 years and 11 months’ imprisonment.

21.Again excluding from the calculation the cannabis, by applying the “conversion test” based on the cocaine guidelines the sentence would be 4 years and 2 months and on the ecstasy guidelines the sentence would be 4 years and 1 month.  A conversion of all the drugs to ice is not however possible because the sentences for the quantities of cocaine and ecstasy are below the guidelines for ice which start at 3 years’ imprisonment.

22.Applying the ratio test the overall starting point would be about 3 years and 10 months’ imprisonment which is less than the starting point for the ice.

23.Taking these matters into account in calculating a reasonable and realistic increase to the starting point I increase the starting point by 3 months to 4 years and 2 months imprisonment[11].

24.Taking into account the quantity of cocaine and ecstasy, I enhance the starting point by a further 2 months to 4 years and 4 months’ imprisonment for the aggravating factor that the trafficking involved three serious dangerous drugs, ice, cocaine and ecstasy.  I do not enhance the starting point by reason of the fact the defendant was also trafficking in cannabis. 

Previous history of narcotic offences

25.In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[12].  On 25 July 2018 the defendant was sentenced to 6 months’ imprisonment for trafficking in dangerous drugs (cannabis resin).  I further enhance the sentence by 2 months to 4 years and 6 months’ imprisonment. 

Commission of offences by refugees or torture claimants

26.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.

27.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[13].   

28.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[14].  I enhance the sentence by 6 months to 5 years’ imprisonment. 

29.I am satisfied an overall enhancement of 13 months from the base starting point of 3 years and 11 months is appropriate[15].

Own use

30.In a record of interview, the defendant claimed all the dangerous drugs were for his own consumption.  The defendant says he is a drug addict, using herbal cannabis daily and occasionally small amounts of ice and cocaine and that he would share the drugs with his friends[16]. 

31.Mr McNamara submits a 10% discount is appropriate for self-consumption[17].

32.As indicated in court I do not accept the bare assertion the dangerous drugs were purchased for self-consumption. Mr McNamara having taken instructions from the defendant confirms that the defendant does not wish to give evidence in support of his claim.   

33.Further, I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the dangerous drugs were for the defendant’s own consumption[18]. 

34.Clearly the cannabis does not form a significant proportion of the dangerous drugs for the purpose of sentencing.  The starting point for the trafficking having been based on the ice and the enhancement being for trafficking in three serious dangerous drugs, ice, cocaine and ecstasy and not the cannabis, part of the cannabis for self-consumption makes no difference to the sentence[19]. 

35.Similarly, the defendant only taking ice and cocaine occasionally, makes no difference to the sentence[20].  Also there is no claim any of the ecstasy was for own consumption.

36.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months’ imprisonment.