HKSAR v. Shah Rakhim

DCCC 196/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 196 OF 2014

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REASONS FOR SENTENCE

1.Shah Rakhim you have pleaded guilty to one charge of trafficking in 9.42 grammes of herbal cannabis; 15.50 grammes of a powder containing 12.33 grammes of ketamine; 11.56 grammes of a powder containing 2.43 grammes of ketamine and 0.48 grammes of cocaine; 95 tablets containing 2.50 grammes of methamphetamine (‘ice’) and 0.90 gramme of ketamine; 6.18 grammes of a crystalline solid containing 6.05 grammes of methamphetamine hydrochloride (‘ice’) and 52.60 grammes of cannabis resin, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at about 3:00 a.m. on the 9 November last year you were seen by a passerby to alight from a taxi outside No. 84 Hollywood Road, walk to the back of the taxi and throw a bag under the taxi.  The passerby made a report to a nearby police officer who immediately stopped you boarding another taxi.  The bag was recovered by the police and found to contain the drugs particularised in the charge together with a list of telephone numbers; an electronic scale and re-sealable plastic bags.

3.Various guidelines have been laid down for trafficking in drugs.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.

4.In Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 (as explained in HKSAR v Capitania Edwin F. CACC 28/2004) the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 10 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment. 

5.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).    InR v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment. 

6.In Attorney General v Tuen Shui Ming & another [1995] 2 HKC 798 the Court of Appeal laid down guidelines for sentencing in cannabis resin.  Where the quantity of cannabis resin is under 2000 grammes sentence is up to 16 months imprisonment. The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

7.In passing sentence I have carefully considered everything said on your behalf by Mr Chan together with the written skeleton submissions on sentence.

8.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 8.55 grammes of ice would be 6 years and 6 months; for 15.66 grammes of ketamine would be 4 years and 3 months; and for 0.48 gramme of cocaine would be 2 years.  Disregarding for the moment the cannabis this would result in a starting point of 12 years and 9 months imprisonment, which applying what has been referred to as the “absurdity test” is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be no more than 7 years and 6 months imprisonment. 

9.The “combined” approach to sentence is therefore appropriate.  Whilst the most potent drug is ice the starting point must reflect that the largest quantity is ketamine and that there was a small quantity of cocaine and both cannabis resin and herbal cannabis. 

10.In oral submission Mr Chan referred me to HKSAR v Akhmetzyanova Irina CACC 194/2011 (which was an appeal against conviction only) where after trial a sentence of 7 years was imposed for a combination of 9.08 grammes of ice and 80.81 grammes of ketamine.  The amount of ice being similar but the ketamine much higher Mr Chan submits a starting point lower than 7 years would be appropriate.    

11.Notwithstanding there are four different drugs in the present case I have, in an attempt to achieve consistency in sentence, looked at the reasons for sentence which are also available on the judiciary legal reference system.  The trial judge adopted what has been called the “conversion test”.  As indicated in court the sentence appears on the low side.  In my view applying the “conversion test” the sentence should have been nearer that of 7 years and 6 months imprisonment.

12.Mr Chan further submits that the cocaine and cannabis should be disregarded for the purpose of sentence (see paragraph 10 of Mr Chan’s written submission).  I disagree. 

13.Ice being the most potent drug I adopt the starting point of   6 years and 6 months for 8.55 grammes of ice to which I am satisfied an enhancement of 6 months to 7 years imprisonment is appropriate to take into account the fact you were also trafficking in ketamine and cocaine.  Applying the “conversion test” and what has been referred to as the “ratio test” (see HKSAR v Chan Yuk Leong CACC 318/2013) I am satisfied the result for both tests would be a sentence of not less than 7 years. 

14.To be added to this is the cannabis.  In HKSAR v Yau Ka Ming CACC 144/2013 the Court of Appeal said that the starting point for trafficking in ice and cocaine was to be enhanced by 3 months for the unlawful trafficking at the same time in 27.42 grammes of herbal cannabis.  I am satisfied for trafficking in 52.60 grammes of cannabis resin and 9.42 grammes of herbal cannabis the starting point should also be enhanced by a further 3 months to 7 years and 3 months imprisonment which based on quantity alone I am satisfied properly reflects your culpability in trafficking in four different drugs. 

Aggravating factors

15.You have multiple convictions for drug offences including three for trafficking.  Whilst two of the trafficking convictions were in 2005, over eight years ago, and appear from the sentences imposed to be of the least serious category the last conviction for trafficking was in 2010 when you were sentenced to 4 years and 8 months imprisonment.  You were released from that sentence on the 28 March last year and just over 7 months later committed the present offence.  Clearly that sentence had no deterrent effect on you.  In these circumstances I am satisfied the starting point is to be enhanced by 6 months to 7 years and 9 months imprisonment (see for example HKSAR v Ho Siu Loi CACC 362/2012 and HKSAR v Chow Yim Sheung CACC 137/2013). 

16.The present offence was also committed whilst you were on bail for an offence of possession of drugs for which you are now serving DATC.  The commission of offences on bail is an aggravating feature of sentence for which a further enhancement of 3 months to 8 years imprisonment is appropriate (see for example HKSAR v Yuen Gang Shing CACC 303/1997).

Own use

17.Mr Chan informs the court that you have been a drug addict for over 20 years.  You claim that most of the drugs were for your own consumption.  You say the day before your arrest you purchased the drugs for $1800 buying them in bulk because they would be cheaper.   The drugs you say would last you about 1½ months.  When you were arrested you claim you were on your way to a party where you intended to share the drugs with others however on seeing the police you panicked and threw the drugs under the taxi.

18.As indicated in court I do not accept the claim that most of the drugs were for your own consumption.  You have elected not to give evidence in support of your claim.  As clearly you are a drug addict I am however prepared to accept that you may have kept a small amount of the drugs for your own consumption.  In deciding how much weight should be attached to this fact I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.

19.Taking into account the drugs were carried on the street in the early hours of the morning together with an electronic scale and re-sealable plastic bags; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 6 months to one of 7 years and 6 months imprisonment (see for example HKSAR v Ho Siu Loi).

20.Giving you full credit for your plea of guilty you are convicted and sentenced to 5 yearsimprisonment.  I am satisfied this is a meaningful discount from the maximum sentencing jurisdiction of the court of 7 years’ imprisonment, the prosecution having somewhat surprisingly brought this case in the District Court.