HKSAR v. Mohammed Naushad

DCCC 708/2020

[2021] HKDC 1644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 708 OF 2020

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REASONS FOR SENTENCE

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Charge

1.The defendant is charged with two offences:

1^st Charge:

doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, and

2^nd Charge:

failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap. 221.

2.He pleaded guilty to the 2^nd charge before His Honour Judge Dufton who, on 22^nd June 2021, sentenced him to 2 months’ imprisonment. Therefore, the defendant stood trial for the 1^st charge only. On 22^nd December 2021, the defendant was convicted after trial of the 1^st charge.

Trial

3.On 5 April 2020, Police Constable PC 22785 (prosecution witness 1 - PW1)  and his colleagues, in plain clothes, were on duty.  It is not in dispute that:

(a)  he arrested the defendant, a Form 8 recognizance holder on that day near No. 1 Humphrey’s Avenue, Tsim Sha Tsui (TST), and the defendant consented to be searched;

(b)  upon body search, PW1 found 2 transparent re-sealable plastic bags in the defendant’s left front trousers pocket and PW1 suspected them to be dangerous drugs.

4.It is agreed that the government chemist later confirmed that the 2 transparent re-sealable plastic bags of substances contained 19.3g and 19.5g of a crystalline solid respectively.  They contained neither Part I poison nor any dangerous drugs.

5.PW1 took the defendant to TST police station.  On 6 April 2020, PW1 took the defendant to Yau Ma Tei Police Station for further investigation where he reported the case to the Duty Officer and gave a list for the defendant for him to identify which language he used.  The defendant identified Hindi language. PW1 also served on the defendant the Hindi version of the Notice to Persons in Custody. 

6.On 6 April 2020, PW1 took the defendant to Yau Ma Tei police station for further investigation.  Two interpreters were called in to assist PW1.  PW1 spoke in Punti and Mr Lai, police interpreter (PW3)  translated it to English. Then the Hindi interpreter Mr Jaideep (PW2)  translated what was said by PW3 to Hindi for the defendant.  Another Hindi version of the Notice to Persons in Custody was served on the defendant. PW2 translated the contents in Hindi for him.  Thereafter a video recorded interview (VRI)  was taken from the defendant. I have watched it in open court and ruled that the defendant voluntarily took part in the VRI.

7.In gist, the defendant made admissions that prior to his arrest he went to a premises to smoke ice as he was an ice addict.  He was there and then given the 2 transparent plastic bags and told to put them in the pocket and to deliver them to someone near the place of his arrest for a reward of $500. He also admitted that he looked at the bags and he told PW1 that “It was first time I have seen this much.  Normally I take very little bit.”  Having considered all of the answers in context especially those I quoted in my Reasons for Verdict, I am satisfied that the defendant believed the substances inside the 2 bags were ice.  The photos also show that the substances were crystal-like objects.  Besides, what the defendant did amounted to acts preparatory to or for the purpose of trafficking.  I convicted him as charged.

Criminal Record

8.The defendant does not have any previous criminal conviction.

Antecedent Statement

9.The defendant, aged 48, was born in India in February 1973.  He received education up to primary 3 level in India.  He is married and has a son and a daughter in India.  At the time of arrest, he was unemployed.

Mitigation

10.Mr Sujanani representing the defendant submitted that the defendant arrived in Hong Kong in September 2014.  His wife is aged 36, his son aged 21 and his daughter aged 23.  Since 2019, the defendant relied on his friends’ support for a living.

11.Mr Sujanani relied on HKSAR v Li Oi Yee unreported CACC 302/2016 (date of judgment 2 November 2011)  and said that the defendant was not trafficking in real ice and there was no actual harm done to the consumer.  A 50% discount of sentence as stated in HKSAR v Li Oi Yee should be given to the defendant.  He also referred to HKSAR v Lu Tsz Ho DCCC 830/2017 and HKSAR v Cheung Kwok yin, Ginny DCCC 64/2017. 

12.He said that the tariff for trafficking in 10g to 70g of ice, the sentence range is 7 to 10 years’ imprisonment, and the substances involved here was 2 transparent plastic bags which in total contained 38.8g of substances.  In his calculation, the starting point is 8 years’ imprisonment and as previously said the sentence should be reduced by 50%.  The ultimate sentence imposed on the defendant should be around 4 years.

13.Today, Mr Wong for the prosecution has helpfully referred this court to HKSAR v Cheng Ling Ling unreported CACC 66/2018 9 July 2019 and R v Afzal and Arshal [1992] 13 Cr App R (S)  145 for my consideration. 

14.In response, Mr Sujanani invites the court to give the defendant 50% reduction of sentence from the starting point.

15.There is another issue.  I draw the attention of Mr Sujanani to HKSAR v Londono Montealegre [2017] 1 HKLRD 450, and HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206.  In these two cases, the Court of Appeal said that an offender being a foreign national / Form 8 recognizance holder / torture claimant who committed a crime in Hong Kong is an aggravating factor for sentence.

16.Mr Sujuanani said that it is no dispute that the defendant is a Form 8 recognizance holder and the court is entitled to enhance the sentence.  He hopes that the court can be lenient to the defendant. 

Reasons for Sentence

17.The present offence carries the same maximum penalty for the offence of trafficking in a dangerous drug i.e. on conviction on indictment, to a fine of $5,000,000 and to imprisonment for life.

18.In HKSAR v Li Oi Yee, the appellant was convicted after trial of attempting to traffic in a dangerous drug and was sentenced to 4 years’ imprisonment.  She was stopped and searched and 3 re-sealable bags which contained 39.5g of a substance which she believed to be ice but which upon analysis turned out not to be a drug at all.  The appellant said that she had purchased the substance, believing it to be ice and intended it for her own consumption.  Stock VP (as he then was)  said:

“8. The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reasons of this mens rea a substantial degree of criminality: see Patel and Varshney (1995)  16 Cr App R (S)  267, 272. Whilst part of the sentence in any dangerous drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs cases is that of deterrence. It is the aim of the courts firmly to dissuade erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes erroneously that he is trafficking in dangerous drugs to suggest that he should by reason of happenstance be immune from the deterrent policy.

12…the court should indeed look at the sentence which otherwise would be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the court should at the same time accord a reduction in recognition of the fact that the actual reus brings with it, as matters transpired, no harm to an ultimate consumer.”

19.The Court of Appeal found that the judge correctly took the view that had the substance in fact been ice, the appropriate sentence would have been one in the region of 8 to 8 1/2 years’ imprisonment (see: para 4), and the sentence of 4 years imposed by the judge could hardly be said to have been excessive.  Indeed no justifiable complaint could have been made had the sentence been one of five years’ imprisonment (see: para 13).  The appellant’s appeal against her sentence of 4 years was therefore dismissed.

20.In HKSAR v Cheng Ling Ling, the Court of Appeal, differently constituted, endorsed what was said in HKSAR v Li Oi Yee.  Zerovs JA said:

“28. In summary, a sentencing court should therefore look at the sentence which would have been imposed for trafficking in the drugs the defendant believed he or she possessed, and accord a reduction in recognition of the fact that the physical element of the offence brought with it little, or no harm.”

21.However, it is to be noted that Zerovs JA said:

“30. We point out that none of the cases mentioned suggest a percentage discount, and we do not endorse this approach because the discount that should be given for the “no harm” factor will very much depend upon the particular facts and circumstances of the case.”

22.Bearing in mind the sentencing principles laid down in HKSAR v Li Oi Yee and HKSAR v Cheng Ling Ling, I am required to first look at the sentence which would otherwise be imposed for trafficking in ice and then make a reduction of sentence for the ‘no harm’ factor.

23.According to the guidelines set down in HKSAR v Tam Yi Chun [2014] 5 HKLRD ACC 524/2011, the relevant starting point on conviction after trial for 10g to 70g of ice, the range of imprisonment is 7 to 11 years.  Here, the total amount of the substance in the 2 transparent plastic bags is 38.8g of a substance which the defendant believed to be ice.  On a strict arithmetical application of the guideline, the initial starting point of sentence should be 8.92 years (which is around 8 years and 11 months)  as opposed to what was submitted by Mr Sujanani who said that sentence range for 10g to 70g of ice is 7 to 10 years, and the starting point should be 8 years.

24.Having looked at the sentencing range, I will first adopt an initial starting point of 8 years and 10 months’ imprisonment.  The defendant is entitled to have a sentence reduction for the ‘no harm’ factor i.e. to reflect the fact that what he possessed was not ice, therefore no actual harm would be caused to the consumer.

25.Unlike HKSAR v Cheng Ling Ling, the substance involved here is not a Part I poison.  I am prepared to give a 50% reduction of sentence from the initial starting point.  The sentence is reduced to 4 years and 5 months’ imprisonment. The matter however does not end here.

26.There is an aggravating factor in this case i.e. the defendant is a Form 8 recognizance holder.  The appellant in HKSAR v London Montealegre [2017] 1 HKLRD 45, pleaded guilty to an offence of jointly trafficking in 303g of cocaine with her husband.  The sentencing judge enhanced the starting point for 6 months for she was a Form 8 recognizance holder.  The Court of Appeal said:

“14. The judge then referred to……HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 where it said that in certain circumstances, the commission of an offence by a foreign national who was the holder of a Form 8 recognizance should be treated as an aggravating factor when assessing sentence. In giving the judgment of the Court of Appeal in that case, Macrae J, as he was then, said at paragraphs 21:

“Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime. However, it must be recognized of course that there are crimes committed by torture claimants which do not affect the community at large and therefore it is a matter for the sentencing judge to consider in every case.”

27.In dismissing the appeal against sentence, the Court of Appeal had this to say:

“33. The judge was also correct to enhance the applicant’s sentence by treating her immigration status as an aggravating factor. That other judges may not have always done so in respect of the offenders before them is irrelevant to whether this judge was entitled to do it in respect of this applicant in the circumstances of this case. Despite her denial that she had taken advantage of the hospitality and freedom that Hong Kong had extended her, this is precisely what she did the moment she agreed to courier the drugs for D2. There is no error by this judge in the exercise of her sentencing discretion.”

28.In the present case, the defendant, at the time of the offence, was a Form 8 recognizance holder.  Based on the principles set out above, it is an aggravating factor which justifies an enhancement of sentence.  Having considered all the circumstances including the fact that the defendant did not really trafficking in ice, I will enhance the starting point for 3 months only. The starting point now becomes 4 years and 8 months’ imprisonment.

29.The appellant was convicted after trial so he was not entitled to the one-third discount of sentence which is reserved for those who enter their guilty plea.  I see no other mitigating factor in this case which justifies a reduction of sentence.

30.The ultimate sentence imposed on the defendant is 4 years and 8 months’ imprisonment.