HKSAR v. Sajed Mahmood Minhas

CACC422/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 422 OF 2011

(ON APPEAL FROM DCCC NO. 588 OF 2011)

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BETWEEN

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Before : Hon Cheung JA and Saw J in Court

Date of Hearing : 18 January 2012

Date of Judgment : 18 January 2012

Date of Reasons for Judgment : 20 January 2012

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REASONS FOR JUDGMENT

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Saw J (giving the reasons for judgment of the court) :

1.On 18 January 2012 we dismissed the application for leave to appeal sentence in this matter.  These are our reasons.

2.On 5 September 2011, the applicant was convicted of :

Count 1 : possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance Cap. 134; and

Count 2 : possession of poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance Cap. 138.

3.The applicant pleaded guilty to count 2.  As to count 1 he had originally been charged with an offence of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  He had pleaded not guilty to that charge but guilty to the lesser offence of simple possession.  He was convicted of the lesser offence after trial. 

4.On 19 September 2011, the applicant was sentenced to 18 months’ imprisonment on count 1 and 2 months’ imprisonment on count 2 both sentences were ordered to be concurrent one to the other.

5.It should be observed at the outset that we were not concerned with the sentence on count 2 or the order that the sentences be concurrent. Mr Sadhwani did not advance any grounds of appeal as to those matters.

Background

6.On 30 March 2011 shortly before 4 a.m., the applicant was intercepted by police officers as he and another male boarded a private car in Nam Cheung Street Shamshuipo Kowloon.  The applicant was holding a black bag which was examined by the police officers and found to contain what they suspected to be dangerous drugs.  Those suspicions proved to be correct and subsequent analysis of the contents of the black bag determined that it contained the dangerous drugs described in count 1, namely :

(1)   6.65 grammes of solid and powder containing 5.59 grammes of cocaine;

(2)   2.85 grammes of a crystalline solid containing 2.79 grammes of methamphetamine hydrochloride; and also

those described in count 2, namely :

(3)   15 tablets containing sildenafil, a drug commonly known as Viagra.

7.The cocaine was contained in 3 plastic bags, the methamphetamine hydrochloride and sildenafil each in one plastic bag.

8.Having acquitted the applicant of the trafficking count and returned a verdict of guilty to the lesser alternative of simple possession the judge adjourned sentencing pending the preparation of a Drug Addiction Treatment Centre (DATC) report.

9.That report revealed amongst other things that the applicant was born in Hong Kong in 1967.  He had a raft of possession of dangerous drug convictions which began in 2000 and had been imprisoned for these on five previous occasions.  He had been ordered to undertake a DATC course in June 2000.  The last occasion he had been sentenced to imprisonment was 13 December 2010 for a term of 6 months for an offence of simple possession.  He was released from that term of imprisonment on 12 January 2011 some 2.5 months before he committed these offences.

10.He told the officer who interviewed him for the preparation of the DATC report that he was self-employed trading in second-hand mobile telephones and that he was at the time of his arrest on habitual user of methamphetamine hydrochloride and cocaine.

11.The DATC report did not recommend that the applicant be detained in a DATC centre. By the time of the preparation of the report he had been remanded in custody for a period of 5 months and was by reason of this no longer drug dependent.

12.The judge considered that a term of imprisonment was therefore the only appropriate sentence.

13.For count 1 the judge determined that the starting point for sentence after trial should be 27 months’ imprisonment which he reduced that to 18 months’ imprisonment to reflect the applicant’s plea of guilty.

14.The judge arrived at that starting point in the following way.  He adopted an initial starting point of 12 months’ imprisonment which he further enhanced by :

(1)   9 months to reflect what he described as the “latent risk” factor; and

(2)   6 months to reflect the applicant’s extensive criminal record for similar offences.

15.For count 2 the judge determined that the starting point for sentence after trial should be 3 months’ imprisonment which he likewise reduced to 2 months’ imprisonment to reflect the applicant’s plea of guilty.

16.The judge ordered that both terms be concurrent one to the other which resulted in an overall sentence of 18 months’ imprisonment.

The application

17.On behalf of the applicant Mr Sadhwani submitted that the initial starting point for sentence of 12 months’ imprisonment for simple possession of these types and quantities of dangerous drugs was appropriate.  He also accepted that this was a proper case for the judge to enhance that starting point because of the latent risk factors and because he was a repeat offender.  He quite properly focused the application on the degree of enhancement to that starting point by reason of the two matters referred to above.

18.He submitted that an enhancement of 9 months for the “latent risk” factor was manifestly excessive and that this level of enhancement should be reserved for cases more serious than the applicants.  In this regard he referred us to a number of decisions of this court.  Some more helpful than others.

19.We need only refer to the following.  In HKSAR v Mok Cho-tik [2001] 1 HKC 261, 263.  Stock JA (as he then was) referred to the latent risk factor as being “in other words the risk of the drugs being “re-distributed”.  In discussion as to the proper approach to enhancement of sentence to reflect this Stock JA said :

“… We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.

and later

… The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff.  Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs.  The full circumstances of the risk must be assessed.”

20.In HKSAR v Jarhia Kuldeep Singh CACC96/2006 (unreported) Mok Cho-lik was applied.  In Jarhia Kuldeep Singh, a conviction for simple possession had been substituted by the Court of Appeal for one of trafficking.  The drug concerned was methamphetamine hydrochloride.  When sentencing the Court of Appeal adopted a starting point for sentence after trial of 15 months’ imprisonment and enhanced that by a further 12 months to take into account the latent risk factor.  This combined term of imprisonment 27 months was then discounted to 18 months for his plea of guilty.  The quantity of methamphetamine hydrochloride was 6.82 grammes.  The combined quantity of methamphetamine hydrochloride and cocaine in the instant case is 8.38 grammes.  In Jarhia Kuldeep Singh the applicant was stopped in the street and the drugs found in his possession were in a single bag.  In the instant case not only was there a greater quantity of drugs but there were two types of drugs, packaged in 4 separate bags.  In addition the applicant was in possession of some 40 plastic bags together with in excess of $800 cash.

21.In his written submission Mr Sadhwani emphasized that the starting point for sentence after trial and before enhancement of 12 months’ imprisonment was appropriate, in discussion he accepted that it was at the lower end of the range.  With that concession we agree.  It can be seen from Jarhia Kuldeep Singh (and other cases referred to by the respondent) — this starting point could properly have been higher.

22.It was submitted by Mr Sadhwani that the “enhanced sentence for latent risk was manifestly excessive given the lack of aggravating factors”.  He submitted that the amount of cocaine and methamphetamine hydrochloride was “neither very large nor very small.”  This individually may be true however we observe the total is more than the amount of dangerous drugs as Jarhia Kuldeep Singh. It is to be remembered that apart from the two types of drug referred to in count 1 the applicant was in possession or other prohibited pharmaceuticals (those in count 2).

23.Mr Sadhwani emphasized that the applicant had no previous convictions for trafficking and was self-employed selling second-hand mobile telephones both of which are relevant to the degree of latent risk.  However it must be remembered that on his own admission to the officer preparing the DATC report his daily consumption of cocaine alone cost at least $1,000 per day.  When arrested he was in the street, in the early hours of the morning and had all three types of drugs with him.

24.In all of the circumstances the aggravating factors in our opinion far out weighed those matters which Mr Sadhwani submitted placed his criminality at the lower range of latent risk.  The fact that the appellant had been acquitted of possessing these drugs for the purposes of trafficking did not alter the fact that the latent risk factor remained.

25.We do not consider that in assessing the latent risk factor at 9 months’ imprisonment the judge was imposing an excessive sentence.  By reference to Jarhia Kuldeep Singh it could have been higher.

26.As to the enhancement of 6 months’ imprisonment for the applicant’s previous record it is expedient to refer to what the judge said when sentencing : “You were released on 12 January 2011 but in just 2 months, you committed the present offences.”  In HKSAR v Chau Hon-kwong [2011] 1 HKLRD 630, Wright J enhanced the sentence for the defendant’s re-offending and said :

“35. … the proximity of the commission of this, third, drugs offence to the release of the applicant from a substantial period of imprisonment for an identical offence. … demonstrated the lack of impact which two periods of imprisonment for similar conduct in fact had on the applicant. It demonstrated remorselessness on the part of the applicant. It demonstrated the lack of deterrent effect which periods of imprisonment have on the applicant.”

27.The applicant is a persistent offender.  The previous terms of imprisonment imposed on him have been ineffective in deterring him, from the commission of this type of offence.  There is no merit in this ground of appeal.

28.Finally the applicant suggested that the Judge erred in not taking into account or giving sufficient weight to his indication of willingness to plead guilty to Possession of Dangerous Drugs in respect of Charge 1 before the case was transferred to the District Court for trial.

29.There is no merit in this ground of appeal.

30.We therefore dismissed the applications for leave to appeal.

Mr Johnathan Man,  Assistant  Director of Public Prosecutions of Department of Justice,  for the Respondent

Mr Kamlesh Arjan Sadhwani, instructed by Messrs Jal. N. Karbhari & Co., for the Applicant