HKSAR v. Mohammad Rashid

DCCC 280/2023

[2023] HKDC 1719

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 280 OF 2023

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REASONS FOR SENTENCE

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A. Charge and facts

1.The defendant pleaded guilty to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  The particulars are that on 6 November 2022, at Ground Floor, Block C, Chungking Mansions, Nos 36-44 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 25.65 grammes of cannabis in herbal form, 18.85 grammes of a solid containing 13.72 grammes of cocaine and 0.51 gramme of a solid containing 0.10 gramme of 3,4-methylenedioxymethamphetamine.

2.The defendant admitted the following facts.  At about 0941 hours on 6 November 2022 (“the offence date”), PC24096 in plainclothes (“PW1”), PC26253 (“PW2”)  and other team members were patrolling at Chungking Mansions, Nos 36-44, Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong (“Chungking Mansions”).

3.When PW1 patrolled at Ground Floor, Block C, Chungking Mansions (“the offence location”), he spotted the defendant walking towards him and acting furtively, and he could smell the odour of cannabis from the defendant.  PW1 revealed his identity and intercepted the defendant who put his hands at his back and suddenly threw 3 paper cups (“E1”)  on the ground outside shop No 72 of the offence location.  PW1 then subdued the defendant and conducted a body search on him.  PW2 guarded E1 outside the said shop.

4.Upon search, PW1 found 7 resealable plastic bags each containing suspected cannabis in herbal form (“E3-E9”)  inside a paper bag (“E2”)  held by the defendant’s left hand.

5.PW1 then picked up E1 in front of the defendant and found the followings:-

(a)  in cup 1 of E1, 7 resealable plastic bags each containing suspected cannabis in herbal form (“E10-E16”);

(b)  in cup 2 of E1, 10 resealable plastic bags each containing white powder substance suspected to be dangerous drugs (“E17”); and

(c)  in cup 3 of E1, 18 resealable plastic bags each containing white powder substance suspected to be dangerous drugs (“E18”)  and 1 resealable plastic bag containing grey crystalized substance suspected to be dangerous drugs (“E19”).

6.At about 0948 hours on the offence date, PW1 arrested the defendant for the offence of Trafficking in Dangerous Drugs (“the offence”).

7.HK$2,625 and 2 mobile phones were found on the defendant.

8.At about 1910-1945 hours on the offence date, with the assistance of interpreters, police conducted a video-recorded interview (“VRI”)  with the defendant. In the VRI, the defendant stated, inter alia, the followings:-

(a)  he did not work in Hong Kong and had no income, thus he was living on the government allowance;

(b)  he consumed dangerous drugs in white and green but did not know what types of those dangerous drugs were;

(c)  he consumed dangerous drugs as much as he had, and he used cigarette to take the drugs;

(d)  the dangerous drugs seized were provided by someone for free in Chungking Mansions for his own consumption.

9.Government Chemist examined E3-E9, E10-E16, E17, E18 and E19 and found the followings:-

(a)  E3: 1 plastic bag containing 2.97 grammes of cannabis, in herbal form;

(b)  E4: 1 plastic bag containing 2.96 grammes of cannabis, in herbal form;

(c)  E5: 1 plastic bag containing 3.00 grammes of cannabis, in herbal form;

(d)  E6: 1 plastic bag containing 3.04 grammes of cannabis, in herbal form;

(e)  E7: 1 plastic bag containing 2.98 grammes of cannabis, in herbal form;

(f)  E8: 1 plastic bag containing 3.02 grammes of cannabis, in herbal form;

(g)  E9: 1 plastic bag containing 2.99 grammes of cannabis, in herbal form;

(h)  E10: 1 plastic bag containing 0.64 grammes of cannabis, in herbal form;

(i)  E11: 1 plastic bag containing 0.58 grammes of cannabis, in herbal form;

(j)  E12: 1 plastic bag containing 0.59 grammes of cannabis, in herbal form;

(k)  E13: 1 plastic bag containing 0.61 grammes of cannabis, in herbal form;

(l)  E14: 1 plastic bag containing 0.78 grammes of cannabis, in herbal form;

(m)  E15: 1 plastic bag containing 0.68 grammes of cannabis, in herbal form;

(n)  E16: 1 plastic bag containing 0.81 grammes of cannabis, in herbal form;

(o)  E17: 10 plastic bags containing a total of 9.43 grammes of a solid containing 6.85 grammes of cocaine;

(p)  E18: 18 plastic bags containing a total of 9.42 grammes of a solid containing 6.87 grammes of cocaine; and

(q)  E19: 1 plastic bag containing 0.51 grammes of a solid containing 0.10 grammes of 3,4-methylenedioxymethamphetamine.

10.The defendant was a Form 8 holder on the offence date.

11.On the offence date at the offence location, the defendant was in possession of 25.65 grammes of cannabis in herbal form (ie E3-E16), 18.85 grammes of a solid containing 13.72 grammes of cocaine (ie E17 and E18)  and 0.51 grammes of a solid containing 0.10 gramme of 3,4-methylenedioxymethamphetamine (ie E19)  for the purpose of unlawful trafficking.

B. Criminal record

12.The defendant has one record of possession of dangerous drugs and one of trafficking in dangerous drugs, both in 2022, for which he was fined $10,000 and imprisoned for 14 weeks respectively.

C. Mitigation

13.The Defence submitted that the defendant is aged 45 and single without children.  He is addicted to drugs

14.The Defence agreed that, according to the sentencing guideline, the starting point for 13.72 g of cocaine in this case is about 63 months’ imprisonment.

15.They submitted that given the insignificant quantities of MDMA and herbal cannabis in this case, the court could ignore them for the purpose of sentencing.  Alternatively, the court may enhance the sentence for 1 month on the basis of cocktail drugs.  The Prosecution agreed with the latter approach which was adopted in HKSAR v Rahman MD Motaleb CACC 235/2021 (para 12).

16.The Defence accepted that the sentence could be enhanced for the defendant’s Form 8 holder status for up to 6 months, and for his previous trafficking record.

17.The Defence submitted that the sentence should be discounted for 10% for self-consumption which is supported by the defendant’s previous possession record and his positive urine test result for cocaine.  The Prosecution agreed.

D. Sentence

18.I adopt a starting point of 63 months’ imprisonment.

19.It is enhanced by 1 month since MDMA and herbal cannabis were also involved, by 6 months for the defendant’s Form 8 holder status, and by 2 months for his previous record of trafficking in dangerous drugs to 72 months.

20.It is then reduced for his guilty plea and self-consumption of part of the drugs by 43% in total to 41 months.

21.Accordingly, the defendant is sentenced to 41 months’ imprisonment for this case.