HKSAR v. Iftikhar Ahmed

HCMA828/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.828 OF 2004

(ON APPEAL FROM ESCC 2643 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 5 November 2004

Date of Judgment : 5 November 2004

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J U D G M E N T

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1.The appellant was convicted by Magistrate Candy on 15 June 2004 of four charges of trafficking in a dangerous drug.

2.The facts agreed were that on four separate occasions, an undercover police officer telephoned the appellant and arranged to purchase from him a quantity of cannabis.  The cannabis was supplied within a short period of time on each occasion and varied in purchase price from $850 to $4,200.  The magistrate, in arriving at his sentence, considered a number of matters to have been in aggravation of sentence.

3.The first ground of appeal dealt with the background of the offence.  The magistrate found there was evidence that the appellant was selling cannabis to persons other than the undercover police officer.  This was a conclusion he drew from the number of offences, the speed with which the drug could be supplied, the quantity of drug which was supplied on each occasion and the price of the appellant would have had to pay for the drugs before supplying them to the undercover officer.  This argued a degree of contact, familiarity with and ease of acquisition of drugs which would not have been available to a person who had only supplied this officer on these four occasions.  In considering that an aggregating factor the magistrate was not sentencing the appellant in respect of offences for which he had not been charged.  He was taking into account, as he was entitled to do, the general background of the offence showing that the appellant was familiar with trafficking in dangerous drugs.

4.The second ground of appeal was that the magistrate erred in speculating that the appellant’s previous conviction involved a considerable quantity of cannabis.  The appellant had been convicted in the year 2000 of a charge of trafficking in a dangerous drug ― that was in July 2000.  He was sentenced to eight months’ imprisonment.  The magistrate inferred from that sentence that he had been trafficking in a large quantity of cannabis.  There was no evidence before the magistrate as to the details of that offence and he was not entitled to take that as an aggregating factor.

5.The third complaint in the Grounds of Appeal is that the magistrate had, by virtue of that previous conviction, treated the appellant as a recidivist.

6.The law is clear that where an accused has a number of previous convictions the court is entitled to take into account those convictions to see whether the accused has benefited from the penalties which had been imposed upon him.  In HKSAR v. Lai Yau Fat, CACC278/2000, Stuart-Moore Ag CJHC said this :

“The judge was fully entitled to have taken into account the previous character of the Applicant.  In saying this, we have in mind what was said by the court in HKSAR v Chan Pui-chi [1993] 3 HKC 848.  The court had held that while a defendant should not be sentenced for previous offences, the repetition of the applicant’s trafficking increased the gravity of these offences as far as sentence was concerned.  The offence of drug trafficking was not an exception to the general rule that re-offending in the same way might aggravate the offence from a sentencing point of view.”

In that case, the applicant had been sentenced to prison effectively every year for the last seven years and had 18 convictions, 13 of which were obviously drug-related.  I do not take that authority to mean that a single previous conviction four years prior to the sentencing in this matter entitled the magistrate to consider the offence aggravated because of the recidivism of the accused.  He was, however, entitled to take into account that the appellant was facing four charges of drug trafficking before him over a period of time from 28 January 2004 to 21 February 2004.  That is a factor which would aggravate the offence.

7.The tariff in respect of trafficking in cannabis is laid down in the Attorney General v. Tuen Shui Ming [1995] 2 HKCLR 129.  There, in respect of quantities under 2,000 grammes, the tariff is up to 16 months’ imprisonment.  The accused, is entitled to look to Tuen Shui Ming and to consider when he decides whether he should plead the sentence which may be passed upon him for the amount of cannabis in which he trafficked.

8.In this case, the total amount covering the four offences for which the accused was charged was 277.62 grammes.  Whilst sentencing under a tariff is not a strait-jacket, an accused is entitled to consider that there will be a general proportion between the amount in which he trafficked and the tariff guidelines set down by the Court of Appeal.  He also faces the general expectation the proportion that his drug-trafficking bears to the band and to the tariff will be increased by aggravating factors.

9.In this case, the aggravating factors were not sufficient to take the starting point from the band of up to 16 months to the starting point of 18 months adopted by the magistrate, nor was the amount in which the appellant trafficked and the circumstances in which he did traffic over the four charges sufficient to take the starting point from the lower end to the top of that tariff.

10.Accordingly, the sentence is manifestly excessive and the appeal will be allowed to the extent that a sentence will be imposed which will effect the immediate release of the appellant.

Miss Olivia Tsang, GC of Department of Justice, for the Respondent

Mr Charles C.C. Chan, instructed by Director of Legal Aid, for the Appellant