HKSAR v. Naseer Umair

DCCC 634/2021

[2023] HKDC 391

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 634 OF 2021

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REASONS FOR SENTENCE

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1.The Defendant, Mr Naseer Umari, had been convicted by me on 18 January 2023. The details of the case is recorded in my Reasons for Verdict.

2.I called a background report and reserved the Mitigation and Sentence.

3.I received the mitigation bundle from Ms Mohamed, the Defence Counsel, on 9 February 2023.  I considered the content of the mitigation bundle and the background report carefully. 

4.According to the authorities[1] and my calculation, the usual sentence of Charge 1, trafficking of 6.09 grams of methamphetamine hydrochloride (ICE)  is 64 months’ imprisonment.

5.The maximum sentence for Charge 2, driving without a valid licence, is 3 months’ imprisonment and a fine of $5,000; that for Charge 3 is 12 months’ imprisonment, a fine of $10,000 and disqualification from holding or obtaining a driving licence for all classes of vehicle for a period of 12 to 36 months from the date of conviction.

6.The Defendant is not a fresh offender, he has criminal records like possession of dangerous drugs and managing gambling establishment.  According the background report, I find the Defendant’s only mitigating factor is he pleaded guilty to Charge 2 and 3.

7.For Charge 1, the usual sentence is 64 months’ imprisonment and I do not find any reason to deviate from it.  Further, at the material time, he was a Form 8 holder, it is well established that such a fact is an aggravating feature and the enhancement of sentence should be substantial[2]. After considering the authorities[3], I think a 6 months’ enhancement is appropriate, so the total sentence for Charge 1 should be 70 months’ imprisonment.

8.For Charge 2, the starting point should be 6 weeks’ imprisonment, and that for Charge 3 should be 3 months’ imprisonment.  The Defendant pleaded guilty to them at the early stage, so I deduct one third from the starting point and impose 1 month’s imprisonment for Charge 2 and 2 months’ imprisonment for Charge 3 on the Defendant.  According to the totality principle, Charge 2 and 3’s imprisonment terms should run concurrently.  He should also be disqualified for 12 months under Charge 3, counting from the date of conviction.

9.The prison terms of Charge 1 should run consecutively with Charge 2 and 3 as they were not related. 

10.The total sentence should be:

a. 70 months’ imprisonment for Charge 1 (minus 42 days for the administrative detention);

b. 1 month’s imprisonment for Charge 2;

c. 2 months’ imprisonment for Charge 3, which runs concurrently with Charge 2. Under Charge 3, the Defendant is also disqualified from holding or obtaining a driving licence for a period of 12 months, counting from the date of conviction;

d. The total imprisonment term is 72 months (minus 42 days for the administrative detention).