HKSAR v. Faisal Anwar

DCCC595/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 595 OF 2010

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Reasons for Sentence

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1.The defendant was found guilty after trial of a charge of trafficking in a dangerous drug.

2.In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular, the nature and dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf.

3.The facts which I find the prosecution have proved beyond reasonable doubt can be summarized as follows.

4.At around 11.30 pm on 9 April 2010, the defendant was stopped on a street in Central.  Upon search, 27.02 grammes of a powder containing 23.02 grammes of ketamine was found on him.  Under caution, he admitted that the dangerous drugs belonged to him and he intended to sell them.

5.The defendant is 35 years old.  He was born in Pakistan and came to settle in Hong Kong in 1991.  He received education up to high grade 10 in Pakistan.  Since he arrived in Hong Kong, he has been working as a transportation worker.  His employer wrote a letter telling the court that the defendant is a hardworking worker and responsible staff, and that he is willing to employ the defendant again after his discharge.

6.The defendant is married with one son and two daughters.   His wife is a housewife.  The children are all primary school students.  The parents of the defendant are living in Pakistan. 

7.The defendant is not a first-time offender. Criminal conviction record reveals that he had been convicted on three occasions for indecent assault, three times for common assault, once for possession of an identity card relating to another, once for making off without payment, once for criminal damage and once for AOABH which was his last conviction.

8.This is the first time he is convicted of an offence relating to a dangerous drug.

9.The dangerous drug the defendant trafficked in was ketamine.  The quantity of narcotic content was 23.02 grammes.   In the case of SJ v Hii Siew Cheng, CAAR7/2006, the Court of Appeal indicated a tariff for sentencing for a trafficker in such dangerous drug.  If the quantity of ketamine trafficked is 10 to 50 grammes, the sentence to be considered is 4 to 6 years’ imprisonment. 

10.In mitigation learned defence counsel stressed that there is no evidence that the defendant was involved in a large scale operation.  There was no international element.  There was no indication that the end users of the dangerous drug would be those particularly vulnerable. When the defendant committed the present offence, he was still in employment. 

11.In all the circumstances, I see no reason to depart from the tariff. 

12.The court was informed that the defendant is a drug dependant.  I, however, do not consider it necessary to consider sending him to DATC for treatment.  In the light of the length of the imprisonment term I am going to impose, the facility and service in the prison should be sufficient to assist the defendant to get rid of the drug habit. 

13.In Lau Tak Ming [1990] 2 HKLR 37, the Court of Appeal said that within a suggested band, the court should take into account the following factors: the profit which may reasonable be expected; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender and his previous history of narcotics offences.

14.Having considered the whole of the circumstances, I consider a starting point of 51 months appropriate.  I do not consider there exists any matters of real mitigation which justify a discount in the sentence.

15.The defendant is the sole breadwinner of the family.  His family will inevitably suffer as a result of his detention. However, this is what the defendant should have considered before he embarked on commission of this offence. 

16.By reason of the matters aforesaid, I sentence the defendant to 51 months’ imprisonment.