HKSAR v. Shaikh, Azharuddin

HCMA 566/2021

[2022] HKCFI 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 566 OF 2021

(ON APPEAL FROM WKCC 2720 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing: 8 February 2022

Date of Judgment: 8 February 2022

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JUDGMENT

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Introduction

1.The appellant pleaded guilty to two charges of Trafficking in a Dangerous Drug contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on 22 November 2021 before Ms Amy Chan, Magistrate, (“the Magistrate”) at the West Kowloon Magistrates’ Courts.  He was sentenced to one month’s imprisonment on Charge 1 and four months’ imprisonment on Charge 2, to run concurrently with one another making a total sentence of four months. By his Notice of Appeal, dated 24 November 2021, the appellant appeals against that sentence on the ground that it was too severe.  No Perfected Grounds of Appeal have been served.  The appellant did not appear.  The Court has dealt with the matter on the papers.

Brief Facts

2.On 9 July 2021, the appellant was intercepted by the police as part of an anti‑narcotics operation.  He had in his possession 14 packets of herbal cannabis weighing a total of 48.85g. A search of his flat recovered a further 719.19g of herbal cannabis, an electronic scale and a quantity of re‑sealable plastic bags.  The appellant admitted to dealing in drugs for a salary of $200 per day.  The total amount of herbal cannabis recovered was 768.04g. Its street value was $156,680.2.

Reasons for Sentence

3.The Magistrate noted that Trafficking in Dangerous Drugs is a serious offence for which a sentence of imprisonment usually followed.  She noted that under HKSAR v Chor Lui [2001] 3 HKLRD 95, HCMA 535/2001, 768.04g of herbal cannabis would usually attract a sentence of not more than two months but she commented that it was open to the court to increase that sentence “in especially bad circumstances”.  The Magistrate then went on to note that the street value of the drugs in question was $156,000.  From that value she drew the inference there was a strong market and clear profit to be made from dealing in herbal cannabis.  She also noted that the situation in Hong Kong had changed since HKSAR v Chor Lui and that the sale of herbal cannabis had got out of hand in the West Kowloon area in particular.  She relied upon HKSAR v Yam Oi Lam HCMA 59/2013 in which the Court stated:

“In addition, magistrates know best whether particular offence is prevalent or particularly prevalent in a particular place. Magistrates are entitled to enhance the sentence according to the situation of a particular place. Case law has always allowed this practice.”

4.In respect of sentence, the Magistrate recognised that the appellant was 30 years of age and of good character. He was educated up to Form 2 in India and was an asylum seeker.

5.The magistrate clearly had a starting point of two months for the total quantity of herbal cannabis.  Her notional sentence must have been one of six weeks on Charge 1 and six months on Charge 2 which was then subject to the full one‑third discount.  The resultant sentence of one month’s imprisonment for 48.85g of herbal cannabis and four months’ for 719.19g of herbal cannabis did not reflect how the Magistrate broke down the aggravating factors but it appears that they attracted an uplift of three times the previous going rate.

The Law

6.In HKSAR v Chor Lui [2001] 3 HKLRD 95, HCMA 535/2001, a sentence of two months after plea for 0.24g of herbal cannabis was not manifestly excessive although that sentence took into consideration the previous convictions of the defendant for possession and the fact that he was operating within a discotheque.  That latter element militated towards a custodial sentence.  The aggravating factors here are the street value of the herbal cannabis in Hong Kong today and the striking increase in its prevalence.

7.The Magistrate was also entitled to enhance sentence as a result of an offence committed by a Form 8 holder[1].  That enhancement clearly has to be consistent with the underlying offence.  Whilst the magistrate did not identify the amount of the enhancement, it was clear that she took it into account for the purposes of sentencing along with the issue of prevalence.  She was fully entitled to do so.

Conclusion

8.I can see no basis whatsoever to criticise the findings of the Magistrate who directed herself to relevant authorities. It is correct to say that the magistrates’ courts are in the best position to assess the prevalence of crime in a particular area.  It is inevitable that crimes such as dealing in dangerous drugs are not static.  Drugs such as Cocaine, Heroin, Ice and Ketamine wax and wane in popularity and availability.  Derivatives of them come and go.  New synthetic drugs are introduced to the market and old well‑known drugs such as cannabis find themselves popular and in demand once more.  It is also possible that the public attitude to what are referred to as ‘soft drugs’ has enabled this to happen, especially where herbal cannabis is concerned.  But there has been no change in legislation or attitude towards these drugs by the government of Hong Kong.  They are still illicit drugs and can cause harm.  As such, those that deal in them must expect to be punished if they are caught.  Sentences must be seen to denounce such activity and to deter others from following suit.  They are not a straight‑jacket tying the hands of those in whom we trust to deal with criminal justice.  They must have the power and discretion to react to prevailing conditions and this is what the Magistrate did in these circumstances.

9.This appeal against sentence is dismissed with costs to the respondent.

Ms Peggy Lee, PP of the Department of Justice, for the respondent.

The appellant, unrepresented, absent.