HKSAR v. Teuhidul Islam

DCCC 203/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 203 OF 2013

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Reasons for Sentence

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1.I have convicted the defendant after trial of one charge of trafficking in dangerous drugs. I will not repeat the facts as I have given full reasons in my verdict.

2.In short, the police received information about drug activity in the defendant’s premises involving the defendant.  A search warrant was obtained and an observation post set up.  Defendant was arrested outside his premises.  The police entered his room and found a box containing three types of dangerous drugs and several small transparent resealable plastic bags.  Defendant denied all knowledge of the dangerous drugs, claimed they were hidden in his false ceiling by an enemy or enemies who then informed the police. 

3.I rejected his evidence and explanation.  I found he was in possession of the dangerous drugs and intended to traffic the dangerous drugs.  The drugs were estimated to be worth nearly HK$10,000.  There were three types of drugs, as I have said, the majority being 4.64 grammes of “Ice,” then 1.92 grammes of cocaine and 5 milligrammes of nimetazepam.  

4.The defendant does have one previous conviction.  In 2011, he was convicted of assault occasioning actual bodily harm.  He was given a suspended sentence.  That is the only conviction.  He has no drug-related convictions.  I am informed by the antecedent statement he is not a drug addict.

5.The defendant is an asylum seeker and came to Hong Kong in 2008.  He has an elder brother in Hong Kong for the same reason. The defendant has his rent and food provided for whilst receiving a small amount of money for transportation each month.  Because of his status in Hong Kong, the defendant is not allowed to work in Hong Kong.  He cannot earn any income.

6.People in the defendant’s position often live in very tight financial situations.  Yet, as I pointed out in my verdict, the defendant had within one week possession of four mobile phones, a significant amount of cash as well as nearly $10,000 worth of drugs.  I found from the facts an inference of guilt that he was trafficking drugs.

7.I have heard mitigation put forward on the defendant’s behalf that the defendant is single and 28 years old. 

8.This is a case where there is a mixed cocktail of drugs.  How to arrive at an appropriate starting point is considered in several authorities, notably HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Wong Kin Kau CACC 269 of 2009. 

9.In these authorities, two different sentencing approaches are considered: the individual and combined approach.  The individual approach is to determine an appropriate starting point for each type of dangerous drug and then combine them into an overall starting point.  The combined approach involves a starting point for the more or most serious type of drug and then take into account and adjust upwards in light of the quantity of the less serious drug to reach the overall starting point.  No adjustment upwards is required if the less serious drug is in an insignificant quantity. The combined approach is more likely to lead to a correct overall sentence. The totality of the overall starting point is of utmost consideration.

10.In this case, “Ice” is the more serious drug in terms of potency and quantity.  As I have said, the quantity of “Ice” is 4.64 grammes.  According to the authority of the AG v Ching Kwok Hung [1991] 2 HKLR 125, where between 0 to 10 grammes of “Ice” is involved, a 3-to-7-year term of imprisonment would be appropriate.  Therefore, in this case, the appropriate starting point would be about or just under 5 years.

11.There are also guidelines for trafficking cocaine, and it is aligned with the guidelines for trafficking heroin.  The relevant authority is R v Lau Tak Ming [1990] 2 HKLR 370. That authority sets out where up to 10 grammes of heroin is trafficked, an appropriate starting point would be between 2 to 5 years.  In this case, for the quantity of cocaine, 1.92 grammes, starting point would be about 2 years’ imprisonment. 

12.I acknowledge there were tablet fragments of nimetazepam, but the quantity is not significant.  I do not intend to add to any starting point to take into account these tablet fragments.

13.I considered mitigation, the facts of the case and the defendant has a record but nothing relating to dangerous drugs.  I obviously take into account the quantity and types of drugs involved and the appropriate guidelines.  For the quantity of “Ice” here, I would find a starting point of 4 years and 6 months appropriate.  I have to take into account the cocaine and will adjust that starting point upwards by 12 months considering the combined approach for sentencing a cocktail of drugs.

14.The defendant was convicted after trial.  He is not entitled to any discount.  Accordingly, the defendant is sentenced to 5 years and 6 months for this offence.