HKSAR v. Mohammad Mursaleen

DCCC 427/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 427 OF 2014

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REASONS FOR SENTENCE

1.Mohammad Mursaleen you have pleaded guilty to one charge of trafficking in 9.24 grammes of a mixture containing 6.67 grammes of heroin; 13.50 grammes of a powder containing 10.14 grammes of ketamine and 3.35 grammes of a solid containing 2.52 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at around 1:35 p.m. on the 6 March this year the police intercepted you near the junction of Shek Kip Mei Street and Yiu Tung Street in Sham Shui Po.  On a search of your trousers the police found from the right front trouser pocket a coin bag inside which was six plastic bags containing the dangerous drugs particularised in the charge together with $3,706.80 and three mobile phones. 

3.In passing sentence I have carefully considered everything said on your behalf by Mr Law.  I take into account on plea day you admitted possession and have no convictions for trafficking.

Starting point

4.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.  The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  

5.In Secretary for Justice v Hii Siew Cheng[2009] 1 HKLRD 1 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.

6.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 6.67 grammes of heroin would be 3 years and 9 months; for 10.14 grammes of ketamine would be 4 years; and for 2.52 grammes of cocaine would be 2 years and 6 months.  This would result in a starting point of 10 years and 3 months, which applying what has been referred to as the “absurdity test” is clearly excessive for if all the drugs were heroin the starting point based on quantity alone would likely be no more than 5 years and 9 months imprisonment.

7.I therefore agree with Mr Law that the “combined” approach to sentence is appropriate.  The most potent drugs are heroin and cocaine, which have the same guidelines.  With a combined total of 9.19 grammes the starting point based on quantity alone would be 4 years and 9 months imprisonment.  The starting point must also reflect that the largest quantity of drugs is ketamine and that you were trafficking in three different drugs.  I am satisfied an enhancement of 9 months to 5 years and 6 months imprisonment is appropriate which is consistent with the “conversion test” and the “ratio test” (see for example HKSAR v Chan Yuk Leong CACC 318/2013). 

8.I note Mr Law also submitted a starting point of no more than 5 years and 6 months is appropriate although he reached this by taking a lower starting point for the combined heroin and cocaine and a higher enhancement for the ketamine.  I should also add that in determining the starting point I have disregarded that in one plastic bag traces of ice were found.  Although mentioned in the facts and particularised in the Government Chemist’s Certificate the ice is not included in the charge. 

Own use

9.Mr Law submits the majority of the drugs were for your own consumption.  On taking your further instructions 60% of the heroin and cocaine and one third of the ketamine is said to be for your own use.  I am told you have been a drug addict for over 22 years which is borne out by your criminal record showing that you have numerous convictions for possession of dangerous drugs and have been to the DATC on at least four occasions, the first time in 1996. 

10.As indicated in court I do not accept the claim that as much as 60% of the heroin and cocaine and one third of the ketamine were for your own consumption, in particular considering the packaging and that you were carrying the drugs on the street. 

11.You have elected not to give evidence in support of your claim.  However as you are clearly a drug addict having last been discharged from the DATC in June this year (having been recalled to the DATC after your arrest) I am prepared to accept that a small amount of the drugs may have been for your own use. 

12.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.  Mr Law refers me to the case of HKSAR v Cheng Man Bor CACC 234/2007 where the Court of Appeal reduced the sentence by 2 years to take into account that 2.92 grammes of ice were for the applicant’s own use.  I note this case concerned a different drug and only one drug not three drugs as in the present case.   

13.Mr Law submits a 2 year reduction is also appropriate making a starting point of 3 years and 6 months imprisonment.  I disagree for if the defendant was only before the court for trafficking in 40% of the heroin and cocaine and two thirds of the ketamine an enhanced starting point of not less than 4 years and 6 months imprisonment would be appropriate.  I am satisfied to reduce the starting point below that which would be appropriate for the amount the defendant admits is for trafficking would be wrong in principle. 

14.Taking into account the drugs were carried on the street; 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 5 years imprisonment.

15.Giving you full credit for your plea of guilty you are convicted and sentenced to 3 yearsand 4 months imprisonment.