HKSAR v. Rai Danesh

HCMA31/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 31 OF 2004

(ON APPEAL FROM ESCC 3778 OF 2004)

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BETWEEN

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Before:  Hon Lugar-Mawson J in Court

Date of Hearing:  22 March 2005

Date of Judgment:  22 March 2005

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J U D G M E N T

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1.The Appellant, Rai Danesh, faced 4 charges:  The first charge was one of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 3 of the Dangerous Drugs Ordinance, the dangerous drugs there being 3.09 grammes of cannabis resin.  The 2nd charge, which was a re-amended charge, was one of one of possession of a dangerous drug, contrary to sections 8(1)(a) and 2 of the Dangerous Drugs Ordinance, the drugs there were 18.74 grammes of cannabis resin.  The 3rd charge was one of trafficking in a purported drug, contrary to sections 4A(1)(a) and 3 of the Dangerous Drugs Ordinance, that drug purported to be “Ice”.  The 4th charge was one of possession of a Part 1 poison, contrary to sections 23(1), 33(1) and section 34 of the Pharmacy & Poisons Ordinance, that poison was 0.49 grammes of a solid containing ephedra.

2.On 6 December of last year, the Appellant pleaded guilty to the 1st charge, the 2nd charge and the 3rd charge before Mrs Julia Livesey, Permanent Magistrate, sitting at Eastern Magistrates Court.  The prosecution offered no evidence on the 4th charge, which was dismissed. The Appellant was convicted on his own pleas of the 1st to the 3rd charges.

3.The Appellant was sentenced by the magistrate as follows:  for the 1st charge, of trafficking in dangerous drugs, to 12 months’ imprisonment; for the 2nd charge of possession of dangerous drugs, to 4 months’ imprisonment to be served consecutively to the sentence for the 1st charge, and for the 3rd charge of trafficking in a purported dangerous drug, to 8 months’ imprisonment, to be served concurrently with the sentence on the 1st charge; thus making his total sentence one of 16 months’ imprisonment.         

4.The Appellant now appeals against sentence in respect of the sentence passed on the 1st charge only, the trafficking in cannabis resin.

5.The facts are simple.  There were two separate incidents.  In respect of the 1st and the 3rd charges, on 8 August 2004 at 6.30 pm, the Appellant called the first prosecution witness, who was an undercover police officer, and offered to sell him “Ice” and cannabis.  The Appellant called the undercover officer again at 7.45 pm and asked the officer to meet him at a store in D’Aguilar Street, Central.  The officer met the Appellant there at just before 8 pm.  The Appellant then led the officer down a back alley where he handed a bag to him, claiming that it contained “Ice” and one piece of cannabis resin.  The undercover officer then paid the Appellant $500 for the bag and its contents.

6.The Government Chemist later confirmed that cannabis resin was indeed in that bag - it weighed 3.09 grammes - but that the “Ice” was ephedra.

7.The facts of the 2nd charge again involved the same officer.  The Appellant called him at 9.45 pm on 4 August 2004 and offered to sell him some cannabis resin on 26 August.  The Appellant called the officer again on 26 August and repeated that offer.  An arrangement was made for the two of them to meet near the MTR station in Central.  They met, but as the officer went up to meet the Appellant, and before the transaction took place, the Appellant ran away.  He was seen to discard two small plastic bags before he was stopped.  On chemical analysis, the bags’ contents were found to be 18.74 grammes of cannabis resin.

8.The Appellant has a criminal record.  He has 8 previous convictions, 2 of which are of a similar nature, being for possession of dangerous drugs.

9.In her reasons for sentence, the magistrate says that she took a starting point of 18 months’ imprisonment for the 1st charge, before reducing it to 12 months’ imprisonment to reflect the Appellant’s guilty plea.  She did that because she took the view that the facts of the case showed that he was “...clearly involved in the trafficking of dangerous drugs enterprises, that the appellant took the initiative to contact PW1 on more than one occasion, which meant that the appellant’s involvement was more serious than just a one-off trafficking”.   The magistrate referred to no previous appellate decisions concerning trafficking in cannabis resin in her reasons for sentence.

10.The Appellant, as I have said, appeals against sentence in respect of the 1st charge only, the cannabis resin trafficking charge.  On his behalf, his counsel, Mr Don So, submits that the starting point of 18 months adopted by the magistrate was not in accordance with the sentencing tariff for offences of trafficking in cannabis resin and the resulting 12 months sentence was therefore manifestly excessive.

11.In support of this argument, Mr So relies upon R v Tuen Shui Ming  [1995] 2 HKLR 129, as well as other appellate decisions concerning trafficking in cannabis.  However, only Tuen Shui Ming is relevant, as the other cases cited concern herbal cannabis and not cannabis resin.  Cannabis resin is of a different and more serious nature than herbal cannabis.  The Court of Appeal in Tuen Shui Ming observed that cannabis resin has an average concentration of about four times higher than the average concentration found in herbal cannabis.

12.That being said, and as Miss Linda Shine for the respondent very fairly accepts, in view of the small quantity of cannabis resin involved in the 1st charge (3.09 grammes), there is no doubt that the 18 months’ starting point adopted by the magistrate was not in accordance with the established sentencing tariff for this offence. 

13.The tariff was first laid down in Attorney General v Chan Chi Man [1987] HKLR 221.  That case involved a consideration of the now repealed offence of possession of a dangerous drug for the purposes of unlawful trafficking.  It is, however, accepted that what the court said applies as equally to the offence of trafficking in dangerous drugs.  In Chan Chi Man, the Court of Appeal said:

"	Where the amount of cannabis resin involved was small, the following tariff sentence bands for possession of cannabis resin for the purposes of unlawful trafficking applied:
		Band A, under 500 grammes, as the court thinks fit.
		Band B, over 500 grammes, 4 to 8 months’ imprisonment.
		Band C, over 1,000 grammes, 8 to 16 months’ imprisonment
		Band D, over 2,000 grammes, 16 to 24 months’ imprisonment."

14.The Court of Appeal reviewed those tariffs in Tuen Shui Ming, after receiving evidence about the narcotic strength of cannabis resin when compared with the narcotic strength of herbal cannabis of which I have just spoken.  The court decided that Bands “A” to “C” should be merged into a single band of up to 2,000 grammes carrying a maximum sentence of 16 months’ imprisonment after trial.

15.Although I agree with the magistrate’s comments that, as he took the initiative in contacting the undercover police officer, the Appellant’s involvement was more serious than had he just been involved in a one-off trafficking incident, his sentence of 12 months’ imprisonment for this offence, after plea, clearly was not in accordance with established sentencing principle and was excessive.  It must be reduced.

16.I therefore allow the appeal and quash the sentence on the 1st charge.  In its place I sentence the Appellant to 4 months’ imprisonment for this offence.  The magistrate’s other orders remain unchanged.  The Appellant will serve his 4 months’ sentence for the 2nd charge consecutively to his new sentence for the 1st charge, and serve his sentence for the 3rd charge concurrently with his consecutive sentences for the first two charges.  His total period of imprisonment is now one of 8 months.

Ms Linda Shine, SGC, for HKSAR

Mr So Man-lung Don, instructed by the Legal Aid Department, for the Appellant