HKSAR v. Monir Hasan

DCCC 817/2020

[2022] HKDC 1390

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 817 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges:-

(a)  Charge 2: Trafficking of dangerous drugs.

(b)  Charge 3: Possession of part one poison, 3 tablets containing clozapine.

2.As to the remaining charge one of trafficking in dangerous drugs, this court ordered the charge to be left on file and not to be proceeded with without the leave of the court.

THE FACTS

3.On 20 March 2020, in an operation, the police laid ambush outside a flat at a residentital building in Quarry Bay.  At about 9 pm, D1 and D2 came to the flat.  D1 was seen unlocking the flat’s door with a key.  At this point, the police intercepted both D1 and D2.

4.Upon search, the police found the key to the flat, a tenancy agreement to the flat in D1’s name and a receipt of management fee of the flat together with $3,920 cash from D1.

5.In his trouser pocket, a plastic bag containing 0.32 gm of a solid containing 0.31 gm of cocaine (facts of charge1 which is now left on court ‘s file).

6.On D2 (in the bag she carried), a mobile phone; cash HK$5,530, a tenancy agreement of the flat in D2’s name as a tenant and 6 empty transparent resealable plastic bags.

7.The following items were seized:-

On a desk in the dining room :-

(a)  A blue box containing 8 plastic bags which contained 514 tablets plus 10.58 gm of tablet fragments without any dangerous drugs content;

(b)  A green box containing:-

(i)  9 plastic bags containing a total of 5.95 gm of a solid containing 3.66 gm of cocaine;

(ii)  A plastic bag containing 0.67 gm of a crystalline solid containing 0.42 gm of ice;

(iii)  45 plastic bags containing a total of:-

(1)  218 tablets and 3.45 gm of tablet fragments containing 22.6 gm of MDMA;

(2)  68.61 gm of a solid containing 37.82gm of MDMA.

(iv)  2 plastic bags containing 18.81 gm of cannabis resin;

(v)  a plastic bag containing 1.81 gm of cannabis in herbal form;

(vi)  3 pieces of paper containing traces of lysergide (a dangerous drug);

(vii)  3 tablets of clozapine (part one poison).

(c)  A plate containing 8.71 gm of a solid containing 6.35 gm of cocaine.

(d)  Knife, spoon, lighters, shovel, musket, scissor, razor, bundles of resealable plastic bags;

(e)  2 plastic bags containing 38 empty capsules;

(f)  10 notebooks.

In the wardrobe

(h)  3 electronic scales.

On the desk in the bedroom and in the dining room sink

(i)  3 scales and some miscellaneous kitchen ware, plastic boxes and etc.

POLICE INVESTIGATION

8.The landlord of the flat stated that the flat was leased to D1 and D2 for exclusive use since September 2019 at a rent of $1,800 per person.  D1 and D2 are both Form 8 holders, D1 and D2 would settle the monthly rents by bank transfer subsidized by ISS in their behalf.

9.Under caution:-

(a)  D1 said that D2 was his girlfriend and she owned the dangerous drugs which were found inside the flat.

(b)  D2 received the drugs from her boss and would sell them to others.

(c)  The packet of cocaine found on him is for his self-consumption and he is a drug addict.

(d)  He helped D2 to pack the dangerous drugs.

(e)  The cash seized from him was partly given to him by D2 and some were his money (sent from his home country)  and wages from his work as a doll maker.

(f)  The key of the flat was put on top of the meter box near to the flat so that D2 could also use it.

CRIMINAL RECORD

10.The defendant is a Form 8 holder without any criminal record in Hong Kong.

MITIGATION

11.D1 is now 52 years old.  He was born in Bangladesh.  He is married with 2 teenage children.  He left Bangladesh to escape political persecution.

12.D1 and D2 met in 2018 and they started a relationship in early 2019.  She introduced him to take cocaine 8 months ago prior to the arrest.  His urine test 4 days after the arrest showed “cocaine positive”.

13.His father passed away 3 months ago.  He had not seen him since he left Bangladesh in 2014.

14.As the defence advance further in the mitigating in regard to the defendant’s cooperation to the police, (that is paragraph 12 of the mitigation bundle)  I consider that there is no material outcome and the defendant is not entitle to any discount on this point.

SENTENCE

Charge 2

15.In the present case, there were 6 different types of drugs involved, namely ice, cocaine, MDMA, cannabis resin and in herbal form, traces of lysergide.

The applicable sentencing guideline for:-

(a)  Cocaine – R v Lau Tak Ming [1990] 2 HKLR 370

(b)  Ice – AG v Ching Kwok Hung [1991] 2 HKLR 125

(c)  MDMA – S for J v HII Siew Cheng [ 2009] 1 HKLRD1

(d)  Cannabis – AG v Chan Chi Man [ 1987] HKLR 221 and AG v Tuen Shui Ming [1995] 2 HKC 798

16.The individual sentence for the drugs concerns:-

(a)  Ice (0.42 gm)  = 3 years 2 months imprisonment

(b)  Cocaine (10.01 gm)  = 5 years’ imprisonment

(c)  MDMA (60.42gm)  = 6 years 2 month

(d)  Cannabis resin (18.81 gm)  – under 2,000 grammes is up to 16 months

(e)  Cannabis herbal form (1.81 gm)  – the potency of herbal cannabis is 4 times less than cannabis resin

(f)  Traces of lysergide

17.As such, combined approach is opted by the defence as it appeared to be less oppressive in sentence.

18.There are 3 dominant drugs in the present case, they are:-

(a)  Ice = representing 0.6% of the total quantity of drugs

(b)  Cocaine = representing 14.2% of the total quantity of drugs

(c)  MDMA = 60.42 g, representing 85.2% of the total quantity of drugs.

19.I agree with the defence that the quantity of the cannabis and traces of lysergide have no material bearing in sentencing.

20.As said in the judgement of HKSAR v Islam SM Majharul [2020] HKCA 300, at paragraphs 24 and 25:-

“the combined approach involved the calculation of the applicable sentence for the more or most serious drug (in term of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious )  drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As state, it will be a matter of common sense.”

“there may also be cases where the sentencing court can combine the quantities of the two different drugs and calculate the starting point according to the sentencing guidelines of the base drug with appropriate adjustment. However, this will usually occur when the respective sentencing guidelines of the drugs are very similar, such as the guidelines for heroin/cocaine and Ice.”

21.In the present case, Ice represented only 0.6% of the total quality of drugs, as such, this court should add Ice and cocaine to combine the total quantity of the 2 drugs to form as the base drug for calculating the sentencing.

10.01m of cocaine + o.42gms of Ice = 10.43 gms

22.Applying the sentencing guideline in R v Lau Tak Ming, it falls into the sentencing bracket of “between 10 to 50 gm is 5 to 8 years.”  A sentence for 10.43 gm would be 5 years.

23.However, there are still 60.42 gm of MDMA narcotic which attracts a starting point of 6 years 2 month.

24.Both the prosecution and the defence agreed on the calculation of the following 3 tests by using cocaine as the base drug:-

(a)  Absurdity test: 8 years 6 months 16 days

(b)  Conversion test: 6 years 19 days

(c)  Ration test: 6 years 6 months.

25.Applying the methodology for the combine approach as stated in Islam M C Majharul case:-

(a)  The base drug is to combine ice and cocaine which arrives at a total quantity of 10.43 gm.

(b)  According to the sentencing guideline of R v Lau Tak Ming, the starting point for 10.43 gm of cocaine is 5 years.

(c)  As there is still a substantial quantity of MDMA which represented 85.2 % of the total narcotic. According to the sentencing guideline in Hii Siew Cheng for 60.42 gm of MDMA corresponds to a starting point of 6 years 2 month.

(d)  Taking into account of the 3 tests result as stated in the previous paragraph. I would increase the starting point of 5 years by 1 year to arrive at 6 years.

(e)  This remains for me to consider any element of enhancement factor.

(i)  There are a number of different drugs which cater for a larger and wider market than the trafficker in only one type of drug. HKSAR v Wan Lau Mei CACC 389/2013 refers.

(ii)  As stated in HKSAR v Butt Muhammad Gulzar [2020] HKCA 597 where the court held that:-

“the enhancement must be substantial to have a deterrent value. If it is less than 6 months, it will lose its deterrent value.”

(iii)  I consider that a 6 months’ enhancement to the starting point is appropriated. This arrives at a sentence of 6 years 6 months.

(iv)  Another aggravating factor was that the defendant is a Form 8 holder at the time of the offence. I consider that the sentence should be enhanced by additional 6 months.

(v)  The total sentence is now 7 years.

(vi)  Since the defendant pleaded guilty to the first day of trial, he is not entitled to the customary 1/3 discount. He is only entitled to 20% discount, the defence is aware of the discount guideline line in HKSAR v Ngo Van Nam [2016] 5 HKLRD (paragraph of 214 refers).

(vii)  The sentence after discount is 67.2 months. I round down to 67 months.

(viii)  I further reduce one-month imprisonment due to the demise of his father on a compassionate ground.

(ix)  The ultimate sentence is 66 months.

Charge 3

26.As there are only 3 tablets containing clozapine, I consider a fine of $1,000 is appropriate for charge 2.  The defendant agrees that it can be deducted from his $20,000 bail money.  He has 7 days to pay, failing which, he has to serve additional 5 days’ sentence consecutive to charge 1.