HKSAR v. Salim Mohammed

DCCC 101/2022

[2022] HKDC 1050

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 101 OF 2022

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REASONS FOR SENTENCE

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1.On his own pleas and admission of the facts, the defendant was found guilty of one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and one charge of possession of Part 1 poison, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138.

Facts

2.On 24 August 2021, around 12:24 pm, police officers patrolling inside Chung King Mansion at 36-44 Nathan Road, Tsim Sha Tsui smelled a strong odour of cannabis.  They saw the defendant holding a white plastic bag and kept looking around and at the bag itself in the 5/F staircase of block E.

3.The officers intercepted the defendant and searched his white plastic bag, which was giving off a strong cannabis odour.  Inside the white plastic bag were 2 brown paper bags and one Styrofoam takeaway container.  The contents of the 2 brown paper bags and the Styrofoam container were as follows:-

(a)  Inside the first brown paper bag were 15 re-sealable plastic bags containing herbal cannabis.

(b)  Inside the Styrofoam container were 6 pieces of cannabis resin totaling 53.31 gm and 43 re-sealable plastic bags containing herbal cannabis which, together with the herbal cannabis found in the first brown paper bag, amounted to a total of 96.4 gm of cannabis in herbal form.

(c)  Inside the second brown paper bag were 40 empty re-sealable plastic bags and 8 bags containing a total of 15.25 gm of solid containing 10.12 gm of cocaine, 2 bags containing a total of 1.29 gm of crystalline solid containing 1.29 gm of methamphetamine hydrochloride (ICE), 2 bags containing a total of 1.17 gm of solid containing 0.83 gm of 3,4-methylenedioxymethamphetamine (MDMA), 1 bag containing a piece of paper containing traces of lysergide, 1 bag containing 2 pieces of paper containing traces of lysergide and methamphetamine, and 2 bags containing a total of 49 tablets and a tablet fragment containing lignocaine.

4.The defendant was arrested for trafficking in dangerous drugs.  A body search conducted at the police station revealed that the defendant had a mobile phone and cash of HK$1,007, RMB¥3.6 and 3 Indian Rupees.

5.The estimated street value of the drugs seized were as follows: cannabis - HK$19,979; cocaine - HK$22,326; and methamphetamine - HK$912.

6.In a video-recorded interview, with the assistance of an Urdu interpreter, the defendant admitted possession of the white plastic bag.  He identified the substance inside the first brown paper bag as cannabis, which he knew was a dangerous drug.  He had no drug habit and he did not use drugs.

7.Subsequent enquiries revealed that the defendant was a Form 8 recognizance holder.

Defendant’s background

8.The defendant has a clear record.

9.He is now 59 years old.  He was born and raised in India.  He is married, his wife and his 3 daughters are all in India.  He was educated to primary 6 level, and was a trader in mobile phones in India.

10.He is suffering from a blurry right eye and genital inflammation.

11.He is a Form 8 recognizance holder.

Mitigation

12.Defence counsel Ms Sujanani points out that the defendant is a torture claimant who arrived in Hong Kong from India in 2015.  His wife is suffering from serious diabetes, and it is his intention to go back home as soon as he has served his sentence.  His chances of re-offending are very slim.

13.The defendant was merely a mule used by his drug boss to convey the drugs in question.

14.The defendant has given 2 non-prejudicial statements to the police.  However due to the passage of time, the information contained in those statements was of no help to the police.

15.Taking account of his clear record, his plea of guilty at the first available opportunity, and his cooperation with the police by the giving of non-prejudicial statements, defence counsel asks the court to afford the defendant more than one-third discount and not to enhance the sentence on account of his being a Form 8 recognizance holder, or alternatively to enhance it by not more than 3 months.

Sentencing considerations

The trafficking offence (1^st Charge)

16.This charge involves various kinds of drugs in various quantities.  Some of them, such as cocaine and ICE, are in such quantities that an appropriate sentence can be worked out with the application of sentencing guidelines; some of them, such as cannabis resin, herbal cannabis and MDMA, are in such small quantities that there are no sentencing scales; while the rest of them, namely lysergide and methamphetamine, were found in trace amounts. 

17.Compared with the individual approach, the combined approach would seem to be more appropriate in assessing the sentence for the 1^st Charge. 

18.Although relatively small in quantity, ICE is the most potent of the drugs involved in this charge and will be used as a base drug.  After working out the starting point for trafficking in the quantity of ICE involved, I will then adjust the result upwards to take account of the presence of cocaine, and small quantities of MDMA and cannabis.  Traces of lysergide and methamphetamine will be ignored for sentencing purposes.

19.According to the sentencing guidelines set out in Attorney General v Ching Kwok H                ung [1991] 2 HKLR 125, as amended in HKSAR v Capitania CACC 28/2004, the tariff for trafficking up to 10 gm of ICE is 3 to 7 years’ imprisonment.

20.Arithmetically, the notional starting point for trafficking in 1.29 gm of ICE should be 3 years and 6 months’ imprisonment.

21.The matters set out below will help the court to determine how much the starting point for ICE should be increased to allow for the quantities of the other drugs.

22.The sentencing guidelines for trafficking in heroin as set out in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to trafficking in cocaine[1]. According to those guidelines, the tariff for trafficking in 10 to 50 gm of the drugs is 5 to 8 years’ imprisonment.

23.Arithmetically, the notional starting point for trafficking in 10.12 gm of cocaine should be 5 years’ imprisonment.

24.The combined quantity of ICE and cocaine is 11.41 gm.

Absurdity test

25.Trafficking in 11.41 gm of ICE would attract a starting point of 7 years and 1 month’s imprisonment.

Conversion test

26.If the drugs were converted to:-

(i)  ICE – the starting point of 5 years for trafficking in 10.12 gm of cocaine would be more or less the same as that for trafficking in 5 gm of ICE. The 10.12 gm of cocaine can thus be converted to 5 gm of ICE for this conversion exercise. Adding this converted 5 gm to the 1.29 gm of ICE in the charge results in 6.29 gm of ICE. Arithmetically, the starting point for trafficking in this quantity of ICE is 5 years and 6 months’ imprisonment;

(ii)  cocaine – the starting point of 3 years and 6 months for trafficking in 1.29 gm of ICE would be more or less the same as that for trafficking in 5 gm of cocaine. The 1.29 gm of ICE can thus be converted to 5 gm of cocaine. Adding this converted 5 gm to 10.12 gm of cocaine in the charge results in 15.12 gm of cocaine, which arithmetically would result in a starting point of 5 years and 5 months’ imprisonment.

Ratio test

27.Arithmetically, trafficking in 11.41 gm of cocaine would result in a starting point of 61 months’ imprisonment.  10.12/11.41 of 61 months would be 54 months; trafficking in 11.41g of ICE would yield a starting point of 85 months.  1.29/11.41 of 85 months would be 9.6 months (rounded up to 10 months). Adding 10 months to 54 months results in 64 months, i.e. 5 years and 4 months’ imprisonment.

28.According to the sentencing guidelines for cannabis resin[2], the tariff for trafficking in under 2,000 gm of the drug is up to 16 months. In HKSAR v Chor Lui [2001] 3 HKLRD 95, the court held that on a strict mathematical approach, the benchmark tariff sentence should be 4 months for trafficking in under 2,000 gm of herbal cannabis.  For the quantities of herbal cannabis and cannabis resin in our case, a sentence of 3 months’ imprisonment as a starting point would seem about right.

29.As for MDMA, according to the guidelines set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, sentence for trafficking in up to 1 gm of the substance is within the sentencer’s discretion.  I would consider an appropriate starting point to be 6 months’ imprisonment.

30.Taking into account the quantities of the other drugs namely, cocaine, cannabis and MDMA, I would increase the starting point of 3 years and 6 months for the base drug to 5 years and 10 months’ imprisonment.

Aggravating factors

31.The above starting point of 5 years and 10 months would be enhanced by 2 months to 6 years’ imprisonment (the enhanced starting point)  for the aggravating factor that the trafficking involved two or more serious dangerous drugs[3].

32.The defendant being a Form 8 holder is another aggravating factor which necessitates an upward adjustment of the enhanced starting point.

33.In HKSAR v Ali Saif [2018] 6 HKC 19, Macrae VP said:-

“17. When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

34.Heeding the advice of the Court of Appeal, I would increase the enhanced starting point by 6 months on account of the defendant being a Form 8 recognizance holder, resulting in a starting point of 6 years and 6 months’ imprisonment before consideration of mitigating factors.

The possession of part I poison offence (2^nd Charge)

35.I would adopt a starting point of 3 months’ imprisonment for

this charge.

Reduction for mitigation

36.Defence counsel asks the court to take into account that the defendant has assisted the police by the giving of non-prejudicial statements.  However, no steps have been taken to apprise the court of information about the contents of these statements and the assistance, if any, those contents could have given to the investigating authorities.  Moreover, defence counsel informs the court that due to the passage of time, whatever information contained in those statements proved to be of no assistance to the police.

37.This court cannot reduce the sentence by simply acting on the assertion that the defendant has assisted or has tried to assist the police in this manner.

38.In the result, the only mitigating factor of any effect is the defendant’s pleas of guilty, for which he will be given a one-third discount in sentence.

39.After discount, the sentence for the 1^st charge would be 4 years and 4 months’ imprisonment, and that for the 2^nd charge would be 2 months’ imprisonment.

Totality

40.The sentences for both charges are to run concurrently, resulting in a total sentence of 4 years and 4 months’ imprisonment for both charges.  I am satisfied that this total sentence justly reflects the defendant’s criminality and is not unfairly oppressive to him.