The defendant, Manan Abdul, pleaded guilty to two charges of trafficking in a dangerous drug, Charges 1 and 2, and admitted the facts pertaining to the charges.
The defendant committed both charges on 13 October 2017. Charge 1 concerns 1.02 grammes of solid containing 0.68 grammes of cocaine. Charge 2 concerns 334 grammes of a solid containing 228 grammes of cocaine.
The defendant appeared before me pursuant to an order of retrial made by the Court of Appeal on 6 May 2022 after quashing the defendant’s conviction and setting aside his sentence. No trial dates have yet been fixed when the defendant indicated he would plead guilty to both charges.
The defendant has been in custody since his arrest on 13 October 2017.
The Facts
The Summary of Facts dated 18 July 2022 admitted by the defendant reads:
“This is a case of trafficking in a dangerous drug.
(2) At 9.40 pm on 13 October 2017, D was seen by police officers including PC19218 (“PW1”) and PC15741 (“PW2”) quickly leaving the building at No. 315 Nathan Road, Yau Ma Tei, Kowloon and heading in the direction of Tsim Sha Tsui. D returned shortly thereafter at 10.15 pm.
(3) At 10.36 pm, PW2, who was waiting in the stairwell of the building between the 5th and the 6th floor, informed PW1 that D was coming back down to the ground floor via the staircase in the building. PW2 followed D from the 5th floor down to the ground floor. It was at 10.37 pm that D appeared on the ground floor, whereupon he was arrested by PW1 and PW2.
(4) Upon search, PW1 and 2 found a resealable plastic bag containing suspected cocaine (“E1”) in D’s left trouser pocket and cash amounting to HK$16,410 in D’s right trouser pocket. They also found a mobile phone and keys to Room 2 (“Room 2”), Front Block, 5th Floor, No. 315 Nathan Road, Yau Ma Tei, Kowloon where D lived.
(5) With D’s consent, D was escorted to Room 2 for a house search. D used his keys to open the door of Room 2. Inside Room 2, PW1 noticed in the middle of the living room there was a mattress and an adjoining bedroom. D then confirmed with PW1 that the clothes in a wardrobe (“the wardrobe”) of the bedroom belonged to him.
(6) Upon further search, PW1 and 2 found from the wardrobe a resealable plastic bag, containing 4 small plastic bags containing suspected cocaine (“E2”). An electronic scale, a plastic bag containing 21 resealable small plastic bags, cash of HK$42,250 and a tenancy agreement of Room 2 were also found.
(7) It is now confirmed by the Government Laboratory that E1 contained 1.02 grammes of a solid containing 0.68 grammes of cocaine. In addition, E2 contained 334 grammes of a solid containing 228 grammes of cocaine.
(8) The total estimated street value of E1 and E2 was HK$412,410.
(9) D, on 13 October 2017, at Ground Floor, No. 315 Nathan Road, Yau Ma Tei, Kowloon, unlawfully trafficked in a dangerous drug, namely, El.
(10) D, on 13 October 2017, at Room 2, unlawfully trafficked in a dangerous drug, namely, E2.”
Criminal Record and Antecedents Statement
The criminal record summary shows that in the original trial, that is HCCC 338/2018, the defendant was sentenced after trial to a total sentence of 13 years and 6 months for Charge 1 and Charge 2.
On 25 May 2019, the defendant was sentenced to 12 months’ imprisonment for unlawful remaining in Hong Kong, 8 months consecutive to the 13 years and 6 months in HCCC 338/2018.
The defendant is now 29 years old and is single, born in Pakistan. He had completed secondary education in his home country. He was a Form 8 holder and was unemployed at the time of the offence.
Mitigation
I am grateful to Mr Young, counsel for the defendant, for his helpful submissions.
In short, Mr Young submits that:
(1) Starting point sentences of 2 years’ imprisonment for Charge 1 and 12 years and 3 months’ imprisonment for Charge 2 are appropriate. Authority cited: R v Lau Tak Ming [1990] 2 HKLR 370;
(2) The sentence for Charge 1 should run concurrently to the sentence for Charge 2;
(3) The enhancement of the starting point for Charge 2 for the defendant’s Form 8 status should be no more than 12 months’ imprisonment. Cases cited: HKSAR v Butt Mohammad Gulzar [2020] 3 HKLRD 805, HKSAR v Mahabul Alam Khan (unreported, CACC 116/2016), HKSAR v Joof Saihou [2018] 3 HKLRD 456 and HKSAR v Londono Montealegre [2017] 1 HKLRD 450.
(4) A discount of at least 25 per cent should be applied in the discretion of the Court for the defendant’s guilty pleas. Authorities cited, HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
(5) A further discount should be given as mitigation for the excessive delay the defendant experienced during the appeal process after his first trial. Authorities cited in support: HKSAR v Tsang Wai Lun Wayland [2013] 1 HKC 448 and HKSAR v Ho Hon Chung Daniel (unreported, CACC 350/2002).
Consideration
I have considered the nature of the dangerous drugs involved, their facts, the background of the defendant and all the matters urged on the defendant’s behalf by Mr Young.
Charge 1 concerns 0.68 grammes of cocaine, applying the tariff in Lau Tak Ming, it falls within the band of sentence between 2 to 5 years’ imprisonment.
Charge 2 concerns 228 grammes of cocaine, applying the tariff in Lau Tak Ming, it falls within the band of sentence between 12 to 15 years’ imprisonment.
On the facts admitted by the defendant, I find that the defendant played the role of courier and storekeeper of the cocaine under complaint. The tariff set down in Lau Tak Ming are applicable to the defendant’s case.
For Charge 1, given the quantity of the cocaine and the role played by the defendant on the facts before me, a notional sentence after trial of 2 years’ imprisonment is appropriate.
For Charge 2, given the quantity of the cocaine and the role played by the defendant, on the facts before me, a notional sentence after trial of 12 years and 3 months’ imprisonment is appropriate.
I see as an aggravating factor that the defendant committed Charge 1 and Charge 2 as a Form 8 holder. In my judgment, Charge 1 calls for an upward adjustment of 4 months, and an enhancement of 12 months is appropriate for Charge 2.
The starting points after enhancement are therefore 2 years and 4 months, that is 28 months for Charge 1 and 13 years and 3 months for Charge 2.
The defendant decided to plead guilty to the charges after the Court of Appeal allowed his appeal against conviction. No trial dates had yet been fixed when the defendant indicated his intention to plead to the charges. In the circumstances, a 25 per cent reduction for his guilty pleas is appropriate. The 25 per cent reduction would bring the sentence for Charge 1 down to 21 months. The 25 per cent reduction would bring the sentence down for Charge 2 to 9 years, 11 months and 7 days.
Mr Young submits that the waiting time between the appeal hearing on 20 November 2020 and the handing down of the judgment on 6 May 2022 is unusually long and an additional discount should be accorded to the defendant’s sentence as mitigation for the anguish he would have experienced awaiting the outcome of his appeal. Having considered the chronology of events and giving the matter careful consideration, I am prepared to give an addition reduction of 15 days for Charge 1 and an additional reduction of 3 months and 7 days for Charge 2 for the effect of the long waiting time had on the defendant between the hearing of the appeal and the handing down of the judgment.
The sentence for Charge 1 after the additional discount is 20½ months’ imprisonment. The sentence for Charge 2 after the additional discount is 9 years and 8 months’ imprisonment.
Sentence for Charge 1
For the reasons given, I sentence the defendant to 20½ months’ imprisonment.
Sentence for Charge 2
For the reasons given, I sentence the defendant to 9 years and 8 months’ imprisonment.
Totality
The cocaine that formed the subject matter of Charge 1 came from the premises where the cocaine that formed the subject matter of Charge 2 was found. I agree with Mr Young that the discovery of both quantities of cocaine was the result of a continuous sequence of events occurring at approximately the same time and locations. It is appropriate to order concurrent sentences.
I order that the sentence for Charge 1 is to run concurrently with the sentence for Charge 2. The total sentence is 9 years and 8 months’ imprisonment.