HKSAR v. Mizanur Rahman

DCCC 379/2023

[2024] HKDC 1800

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 379 OF 2023

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REASONS FOR SENTENCE

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Charge

1.The defendant is charged with 3 counts of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

2.He pleaded not guilty and was convicted after trial of all the charges.

Trial

3.The facts of the case, as I found, are summarized below.

4.The police received multiple complaints that someone trafficked in dangerous drugs in the bar area of Wan Chai.  As such, PW5 (Inspector Kwok)  and his team of officers conducted a long-term operation, the purpose of which was to combat drug trafficking activities in the area.  In order to reflect that a drug trafficker was “active” in trafficking in drugs, once the decoy officer had successfully bought drugs and paid marked money to a drug trafficker, the police would intercept the trafficker, question him, record his personal particulars and then let him go with the hope that the trafficker would engage in a second transaction.  If the trafficker engaged in a second transaction, he would then be arrested. 

5.On 25 November 2022, a team of officers including PW1 to PW4 were conducting anti-dangerous drugs operation at the bar area in Wan Chai.  PW1 was tasked to linger at the junction of Lockhart Road and Luard Road as a decoy officer. 

Charge 1

6.At about 0051 hours on 26 November 2022, PW1 was approached by the defendant who solicited the sale of cocaine at a price of HK$1,200.  PW1 agreed the transaction and paid the defendant with marked money.  The defendant then passed PW1 one plastic bag containing 0.54g of a solid containing 0.38g of cocaine (Exhibit 1)  (the 1^st transaction).

7.This transaction was observed by PW2 who, at about 0056 hours, stopped the defendant for an identity check.  The defendant produced to PW2 a bail form (Form 8)  which contained his personal particulars.  PW2 discovered the defendant’s name and recorded his identity details in his police notebook.

Charge 2

8.At about 2100 hours on 16 December 2022, PW1 and other officers conducted a further decoy operation at the said bar area in Wan Chai.  PW1 was again tasked to take up the same role as he did on 25 November, and to linger at the junction of Lockhart Road and Luard Road.

9.At about 2108 hours, PW1 was approached by the defendant and agreed the sale of cocaine at a price of HK$1,200.  The defendant asked PW1 to follow him to an alcove on G/F of 72-86 Lockhart Road where he opened a sprinkler control valve cabinet (the cabinet)  and took out one plastic bag containing 0.70g of a solid containing 0.45g of cocaine (Exhibit 2).  PW1 paid the defendant with marked money HK$1,200 (the 2^nd Transaction).

10.This transaction was observed by PW3 and PW4 from the opposite side of Lockhart Road.  PW4 then crossed the road and kept the cabinet under observation.  No other person approached or tampered with the cabinet before PW3 returned to the alcove with the defendant.

11.Meanwhile, PW3, who had been informed by PW1 of (a)  what had just occurred and (b)  the 1^st Transaction, intercepted the defendant at 89 Lockhart Road and arrested him there for two offences of trafficking in a dangerous drug (i.e. the 1^st and 2^nd Transactions).  PW3 found marked money in the defendant’s sling bag.

Charge 3

12.The defendant was escorted to the alcove.  In his presence, PW4 opened and searched the cabinet.  He found (a)  two plastic bags containing a total of 0.99g of a solid containing 0.62g of cocaine (Exhibit 3); and (b)  one plastic bag containing seven plastic bags containing a total of 3.84g of a solid containing 2.37g of cocaine (Exhibit 4).  The defendant was further arrested for trafficking in dangerous drugs.

Criminal Record

13.The defendant has 3 criminal convictions, namely possession for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied; common assault and criminal intimidation, all in 2011.

Mitigation

14.Mr Richmond representing the defendant submitted that the defendant, aged 50, was born in Bengal in 1974.  He completed secondary education in Bangladesh.  He arrived in Hong Kong on 19 June 2006 and later married to a Hong Kong permanent ID card holder and has a 10-year-old son.  He has subsisted on financial assistance from ISS since 2007 and obtained approximately HK$1,200 per month and rent.  He is a Form 8 holder.

15.Mr Richmond referred to R v Lau Tak Ming [1990] 2 HKLR 370 in which the Court of Appeal laid down sentencing guidelines for trafficking in heroin: for up to 10g of heroin, it attracts a sentence of 2 to 5 years imprisonment after trial.  This guideline is to apply to unlawful trafficking in cocaine: AG v Pedro Nel Rojas [1994] 2 HKCLR 269.

16.Mr Richmond submitted that there is no evidence suggesting a high degree of sophistication; organization; and planning.  There is no evidence of any international element.  Charges 1 and 2 relate to the passage of a single small packet of narcotics on the street, each of which was a low-level operation.

17.On the first occasion i.e. on 18 October 2024, Mr Richmond urged this court, despite the guidelines in R v Lau Tak Ming, to adopt a lower starting point for sentence as the amount of cocaine in charges 1 and 2 is small.  On this, he refers to HKSAR v Darboe Bakary ESCC 2473/2022 and HKSAR v MD Tarik HCMA 648/2014.  In the former case, the defendant was arrested in connection with the same anti-dangerous drug operation as in this case.  In the latter case, the appellant trafficked in 0.25g of cocaine and the learned magistrate adopted a starting point of 18 months’ imprisonment and enhanced by 2 months to reflect the trafficking of cannabis resin and herbal cannabis, making it a total of 20 months’ imprisonment.  Deputy High Court Judge Wilson Chan (as he then was)  found that the magistrate had referred himself correctly to the relevant tariffs and that the magistrate could not be criticized for adopting an individual approach.

18.Today (25 October 2024), Mr Richmond in his written submission said “…the narcotic content for the three charges was 3.82g of cocaine.  With respect, this is a small but not insignificant amount.  In my submission this does not fall within the category of very small amounts (often under 1g). As a result,… I respectfully apply the guideline set out in R v Lau Tak Ming and AG v Pedro Nel Rojas.  By way of mathematic calculation, the appropriate sentence for trafficking in 3.82g of cocaine after trial is 37 months.”

19.In respect of the status of the defendant, being a Form 8 holder, Mr Richmond draws the court’s attention to HKSAR v SK HASNAINZZAMAN [2018] HKCA 374 and HKSAR v Gai Malick HCMA 271/2017.  He put on much emphasis that given the very small amount of drugs, the enhancement should be 2 months.

20.Regarding the totality of sentence, Mr Richmond considered that the sentence for charges 1 and 2 should not be consecutive because both offences involved the same defendant and the police had presented the case on the basis of a continuing operation.

Reasons for Sentence

21.The cases (see: Appendix 1)  in which a lower starting point of sentence for trafficking in small amount of cocaine referred to by Mr Richmond are not binding authorities. 

22.According to the guidelines set down by the Court of Appeal in R v Lau Tak Ming which I must follow, the relevant starting point on conviction after trial for trafficking for up to 10g of cocaine, the range of imprisonment is 2 to 5 years.

Starting point

23.The narcotic content of cocaine in charge 1 is 0.38g.  I adopt a starting point of sentence of 24 months’ imprisonment. 

24.The defendant is a Form 8 holder.  In HKSAR v Ali Saif CACC 309/2017, the Hon Macrae VP said:

“17. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

25.In light of the aforesaid, I enhance, for the defendant’s status as a Form 8 holder, the sentence by 6 months. 

26.The sentence for charge 1 is 30 months’ imprisonment.

27.In charge 2, the narcotic content of cocaine is 0.46g and again, I adopt a starting point of 24 months’ imprisonment.  Similarly, I enhance the sentence by 6 months for the reason that the defendant is a Form 8 holder.  The sentence for charge 2 is 30 months’ imprisonment.

28.In charge 3, the narcotic content of cocaine is 2.99g and by reference to the sentencing guideline, I adopt a starting point of 35 months’ imprisonment.  Likewise, I enhance the sentence by 6 months.  The sentence for charge 3 is 41 months’ imprisonment.

Totality

29.I disagree with Mr Richmond that the sentences of charges 1 and 2 should run concurrently with each other.  Although it arose from the same operation involving the same decoy officer, the offence dates were different: charge 1 took place on 26 November 2022 and charge 2 and 3 on 16 December.  The criminality of the defendant, being a repeat offender / being “active” in drug-trafficking activities, must be reflected in the sentence. 

30.I note that the amount of cocaine in charges 2 and 3 is 3.44g which will attract a sentence of 36 months’ imprisonment.  Having considered the totality principle, I order that the sentences of charges 2 and 3 (both offences took place on the same day, 16 December 2022)  to run concurrently with each other i.e. 41 months’ imprisonment.

31.Besides, I order 3 months of the sentence of charge 1 to run consecutively to 41 months’ imprisonment (the sentence for charges 2 & 3), making a total of 44 months’ imprisonment.

32.The defendant was convicted after trial and therefore not entitled to have a 1/3 discount of sentence.  There exists no other valid mitigating factor for a further reduction of sentence.

33.I sentence the defendant to 44 months’ imprisonment.

Appendix 1

Dangerous Drugs

1.  HKSAR v Darboe Bakary ESCC 2473/2022

2.  HKSAR v MD Tarik HCMA 648/2014

3.  HKSAR v Ousmane Issa Boubacar HCMA 381/2015

4.  HKSAR v Gai Malick HCMA 271/2017

Form 8 Enhancement

1.  HKSAR v SK Hasnainzzaman [2018] HKCA 374