HKSAR v. Naseerr Ahmed

DCCC1391/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1391 OF 2011

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Reasons for Sentence

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1.Defendant appeared before me this morning facing a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He pleaded guilty to the charge.

2.The particulars of the offence avers that the defendant on the 16th day of November, 2011, at Nam Cheong Street Sitting-out Area near Fuk Wa Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 13.15 grammes of a mixture containing 10.39 grammes of heroin hydrochloride.

Facts

3.The present case is a simple stop-and-search case.  According to the amended Summary of Facts which was admitted by the defendant, at around 1608 hours on 16 November 2011, a policeman found the defendant sitting on a bench at the Nam Cheong Street sitting-out area near Fuk Wa Street in Sham Shui Po and was looking around furtively.  He looked nervous.  He then stood up and put his hands into a shrubbery.  The policeman then went up and stopped the defendant.

4.Upon a body search, inside the right front pocket of defendant’s trousers, 3 transparent resealable plastic bags, Exhibit P2, P3 and P4, wrapped in a newspaper were found.

5.In short, there were 75 packets containing a total of 13.15 grammes of mixture containing 10.39 grammes of heroin hydrochloride.

6.Defendant was arrested.  Under caution he said in Punti dialect, “The white powder is for my own consumption.  I have nothing to say.” 

7.The police found cash in the sum of HK$5,220 and Vietnam currency $2,000 in defendant’s possession.

8.The street value of the Exhibit P2 to 4 is said to be HK$10,559.

Background and Criminal Record

9.Defendant is now 37 years of age.  He is still single.  He was born in Pakistan and came to Hong Kong in 1992.  His parents are both Hong Kong residents and he lives alone in Sham Shui Po.  He is now a Form 8 holder and possessed a certificate of identity issued by the Immigration Department. 

10.According to his criminal record, the defendant had one previous record in 2008 relating to driving offences, namely drink driving and driving without a licence for which he was fined and also disqualified from driving for 9 months.

11.According to the defendant, he was a drug addict at the time of the offence.

Sentencing consideration

12.Trafficking in dangerous drugs is of course a very serious offence.  Anyone who participates in it, once caught should expect to be dealt with severely by the court. 

13.The present case involves a total of 75 packets of heroin representing some 10.39 grammes of heroin hydrochloride.  The Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370 had already laid down a very clear sentencing guideline concerning heroin.  According to the tariff, up to 10 grammes of heroin hydrochloride, the starting point should be 2 to 5 years’ imprisonment. 

14.In cases such as the present, the quantity of the dangerous drugs is the single most important consideration.  Given the quantity of the narcotic content is 10.39 grammes of heroin hydrochloride, I consider that 5 years is a suitable starting point. 

15.The defendant pleaded guilty and for which he should receive the customary one-third discount.  Mr Polson, counsel appearing for the defendant, also urged me to consider the fact that part of the narcotic content found in this case is for defendant’s self-consumption.  To support this contention, I was informed that shortly after the defendant was arrested and taken into police custody, according to the prisoners’ movement record, he had been sent to methadone clinics to receive methadone treatment.

16.Therefore, although the defendant does not have any previous record of possession of dangerous drugs, given his response to the police after arrest and given the fact that he was indeed sent for methadone treatment during police custody, I am prepared to accept that it is highly likely that the defendant was himself a drug addict and that part of the heroin he possessed was for his self-consumption.

17.That said, the gravity of an offence of trafficking is not mitigated in cases where the trafficker is trafficking in order to fund the purchase of narcotics intended to feed his own addiction.   Thus while I am prepared to make some adjustment to the sentence, I have to bear that in mind and therefore in the end I decided only to reduce the starting point by 3 months.  I shall use 57 months as a starting point and reduce the sentence by one-third on account of his plea.

Order

18.Defendant is sentenced to 38 months’ imprisonment accordingly.