HKSAR v. Parbeg Dhin Muhammad

HCCC 229/2021

[2023] HKCFI 1693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 229 OF 2021

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Mr Parbeg Dhin Muhammad, pleaded guilty to one count of trafficking in dangerous drugs at the committal proceedings. The offence is contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

The particulars of the offence are that the defendant, on 6 May 2020, at 12th Floor, Austin Mansion, No. 15A Austin Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 281.5 grammes of a solid containing 107.09 grammes of cocaine, 90.6 grammes of a solid containing 59.5 grammes of ketamine, 43.2 grammes of a solid containing 33.6 grammes of 3,4-methylenedioxymethamphetamine, 260 tablets and 7.52 grammes of tablet fragments containing a total of 24.3 grammes of 3,4-methylenedioxymethamphetamine.

He is committed to this court for sentencing.

Facts Admitted

On 6 May 2020, at about 2328 hours, police officers stopped and searched the defendant on 12th Floor, 15A Austin Avenue, Tsim Sha Tsui, and found inside the white plastic bag carried by the defendant, inter alia:

(a)  2 plastic bags containing, respectively, 262 grammes of a solid containing 97.8 grammes of cocaine and 19.5 grammes of a solid containing 9.29 grammes of cocaine;

(b)  1 plastic bag of 90.6 grammes of a solid containing 59.5 grammes of ketamine; and

(c)  2 plastic bags of, respectively, 43.2 grammes of a solid containing 33.6 grammes of 3,4-methylenedioxymethamphetamine, or commonly known as MDMA, and 260 tablets and 7.52 grammes of tablet fragments containing a total of 24.3 grammes of MDMA.

The defendant was arrested for trafficking in dangerous drugs.

On his person, there were, among other things, 2 mobile telephones and cash of $2,700.

The defendant did not make any confession in the video-recorded interview subsequently conducted.

The street value of the dangerous drugs seized were approximately $469,261 for crack cocaine and $287,412 for cocaine powder; $45,572 for the ketamine and $44 per tablet of the MDMA.

According to the CCTV footage of a nearby 7-Eleven convenience store, at about 2326 hours, the defendant gave some money to a male who had left the white plastic bag, which was found to contain the dangerous drugs in question, on the counter. The defendant then picked up the white plastic bag. He put his hand inside the bag and he then walked away carrying the bag.

The defendant is a Form 8 recognisance holder.

Criminal Record

The defendant has a clear criminal record.

Mitigation

The defendant is aged 31, a Form 8 recognisance holder from Bangladesh. He arrived in Hong Kong in 2015 and has a clear record.

Counsel for the defendant, Mr Marray, makes a full and thorough mitigation on behalf of the defendant. He lists out the amounts of dangerous drugs found inside the plastic bag, namely, 107.09 grammes of cocaine, 59.5 grammes of ketamine and 57.9 grammes of MDMA.

He also sets out the starting points of the sentences of these drugs, and the calculation of the sentences of the 3 drugs together using the combined approach on the basis of absurdity test, conversion test and ratio test, according to the case of HKSAR v Chan Yuk Leong, CACC 318/2013, at 12.4 years, 10.8 years and 10.15 years of imprisonment respectively.

Mr Marray recognises that the defendant being a Form 8 recognisance holder is an aggravating factor in sentence. He asks the court to enhance the sentence by 6 months for this factor. He sets out the sentences for these three approaches after the enhancement and giving credit for the guilty plea of the defendant as 8.6 years, 7.53 years and 7.1 years imprisonment respectively.

Mr Marray cites the case of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, to support his proposition that a sentencing discount of 33.3 percent to 40 percent to a defendant who has made genuine attempt to assist authorities.

Sentence

As correctly pointed out by Mr Marray, when more than one kind of dangerous drugs are involved in a trafficking offence, the preferred approach in sentencing is the combined approach. The court is of the view this is the just and appropriate approach to adopt in the present case.

Having considered the circumstances of the case, the court is of the view that the 3 bases of the combined approach, namely, absurdity, conversion, and ratio, the conversion test is the more realistic and fair basis.

Among the 3 kinds of dangerous drugs involved, the quantity of cocaine is the largest. The court is of the view that it should be used as the dangerous drug for determination of the starting point, which should then be adjusted upwards basing on the quantities on the other two types of dangerous drugs.

The starting point for trafficking in 50 to 300 grammes of ketamine is 6 to 9 years imprisonment. The amount of ketamine in the present case is 59.5 grammes and the starting point is approximately 6 years imprisonment.

The starting point for trafficking in 10 to 50 grammes of cocaine is 5 to 8 years imprisonment. 6 years imprisonment is equivalent to 24 grammes of cocaine.

The sentencing guidelines for trafficking in MDMA are the same as those for ketamine. There are 57.9 grammes of MDMA in the present case. The starting point is also approximately 6 years imprisonment which is equivalent to about 24 grammes of cocaine.

The total amount of cocaine in the present case thus becomes 155.09 grammes. For trafficking in 50 to 200 grammes of cocaine, the starting point is 8 to 12 years imprisonment. 155.09 grammes of cocaine therefore carries a starting point of approximately 10 years 9 months imprisonment which is the basic starting point adopted by the court in the present case.

As the defendant is a Form 8 recognisance holder, the court enhances the basic starting point to 11 years 3 months imprisonment.

The defendant has made an attempt to assist authorities, but he refused to allow the police to have access to his telephone, which might assist the police to verify the information given by him and to obtain more information. The attempt of the defendant has proved to be futile, but the court is of the view that any effort to assist the authorities should be encouraged. The court therefore reduces the starting point to 11 years imprisonment.

The defendant has no other mitigation apart from his plea of guilty. Giving credit to him in this regard, the court sentences him to 7 years 4 months imprisonment.