HKSAR v. Sajed Mahmood Minhas

HCCC 86/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 86 OF 2013

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The defendant, Mr Sajed Mahmood Minhas, pleads guilty to one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinary, Cap 134.

The particulars of the offence are that the defendant, on 2 September 2012 at Shop Number 36-B 2, Chung King Mansions, Numbers 36-44 Nathan Road, Tsim Sha Tsui, Kowloon in Hong Kong, together with Baath Jarnail Singh, unlawfully trafficked in a dangerous drug namely 66.33 grammes of a solid containing 55.13 grammes of cocaine.

Facts Admitted

On 2 September 2012 at about 1.35 am the defendant was stopped and searched by police officers outside Star Mansions, No 3-5 Minden Road, Tsim Sha Tsui. The defendant took a paper packet tied with a rubber band from inside the front of his trousers and threw it on the ground.

The police officer also found another similar packet concealed inside the front of the defendant’s trousers. The contents of the two packets were found to be 42.91 grammes of a solid containing 34.7 grammes of cocaine and 23.42 grammes of a solid containing 19.39 grammes of cocaine.

On 2 September 2012 the defendant was the legal tenant of a shop located at 36-B, Ground Floor, Chung King Mansions, 36‑44 Nathan Road, Tsim Sha Tsui. According to the footage of the CCTV located there, a male person was seen retrieving the two packets of cocaine, subsequently found in the defendant’s possession, from the ceiling space of the premises and handing them to the defendant who shortly afterwards, was seen on the CCTV footage concealing the packets inside the front of his trousers.

This happened shortly before the defendant was stopped and searched by the police officers where the two packets of cocaine were found. When being arrested and cautioned, the defendant said “Ah Sir, these two bags of “coke” were bought by me with $30,000 for my own consumption over a period of one week”.

The cocaine in question was in form of crack cocaine and had a retail value of $125,960.67 in September 2012.

Criminal Record

The defendant has 20 previous convictions, of which seven were possession of a dangerous drug and one was smoking or injecting a dangerous drug. He was last convicted of possession of a dangerous drug and possession of Part 1 Poison on 19 September 2011 and was sentenced to a total of 18 months’ imprisonment.

Mitigation

The defendant is aged 47, received secondary education and is a merchant. Counsel for the defendant makes a very thorough and powerful mitigation on behalf of the defendant. He points out that the defendant bought the cocaine in question for $30,000 for his own consumption, which would last for about a week. The defence counsel emphasises that the cocaine was found in two packets instead of a number of small packets, showing that they were not for sale.

He also submits further that no paraphernalia associated with trafficking in a dangerous drug were found and the defendant was confirmed to be a drug addict because on his admission to the Correctional Services institution, his urine revealed positive results for amphetamine and cannabis. The defendant pleads guilty to trafficking in a dangerous drug because he would, at times, share the cocaine with his friends. The defence counsel points out that as much as two-thirds of the cocaine was for the defendant’s own consumption and tells the court that he should be given discount as much as 20 per cent, relying on authorities such as HKSAR v Cheng Man Bor CACC 234/2007, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Chan Chun Fai [2011] 3 HKLRD 116.

When the court indicates that on the information before the court, the court only accepts that some of the dangerous drugs was for the defendant’s consumption but not as much as the amount suggested by the defence counsel, the defence counsel then informs the court that the defendant will not take the issue any further.

Defence counsel submits to the court that the defendant ran a legitimate phone business in Chung King Mansions at the time of his arrest and the person arrested together with him was his employee. The lease agreement, photographs, utility bills, business documents and business records involving business of a substantial amount of money are tendered to court in support of the contention.

The defence counsel informs the court that the defendant has 13 children, the eldest being 26 years old and the youngest, 3 years old. Three were by his ex-wife, seven by his cohabitee and two by his two lady friends. The youngest child is now in Po Leung Kuk while the cohabitee and the rest of the children given birth by her are now in the Philippines.

The defence counsel tenders to court letters of the defendant’s son and the defendant’s sister.

In the letters, the defendant is described as a dutiful and loving father and both the son and the sister say that they need the defendant. They point out that the defendant has never denied his responsibility in the present case and they ask the court to give him a chance.

The defence counsel says that the defendant has now leaned a bitter lesson. His father, who was a police officer in Hong Kong, passed away when the defendant was in custody for the present case. This has affected him greatly and he will go back to Pakistan to look after the land his father has bequeathed to him as the eldest son of the family. He will not waste anymore time on consuming dangerous drugs.

The defence counsel also submits to court reports of expert on dosage of cocaine. The defence counsel tenders to court letters of the defendant and the Hong Kong Christian Kun Sun Association Limited. The defendant says in the letter that his father was a highly respected police officer in Hong Kong who passed away while he was incarcerated because of the present case. He was spoiled when he was young and he became a drug addict because of influence by bad peers.

He now knows that he needs to take responsibility of the whole family. He asks the court for leniency so that he may be united with his family as soon as possible. The staff of the Hong Kong Christian Kun Sun Association Limited says in the letter that the defendant has reflected in his misdeeds and has decided to turn a new leaf through the Christian faith. They ask the court for leniency for the defendant.

The defence counsel also asks the court to treat the defendant leniently.

Sentence

According to the case of AG v Rojas [1994] 1 HKC 342, the sentencing guidelines for trafficking in cocaine are similar to those of trafficking in heroin laid down in R v Lau Tak‑ming & others [1990] 2 HKLR 370.

For a quantity of 50 to 100 grammes of cocaine, the starting point is 8 to 12 years’ imprisonment. The amount of cocaine in the present case is 55.13 grammes of cocaine. The starting point is therefore approximately 8 years’ imprisonment. In an offence of such a serious nature, the background of the defendant counts very little, if any, towards mitigation.

The court appreciates that the youngest son of the defendant is being looked after by Po Leung Kuk. The defendant should be able to foresee such consequences when he embarked on the present illegal deed. The court is sure that the child will be well looked after by Po Leung Kuk.

The defendant has lengthy criminal record and he committed the present offence about 4 to 5 months after he was discharged from prison. However, as the defendant has no previous conviction for trafficking in a dangerous drug, the court is not going to enhance the starting point because of his criminal record.

The defendant contends that he trafficked in the dangerous drug because he, at times, shared it with his friends. In the view of the court, this would make the dangerous drug more easily available to his friends who might otherwise be unable to get any dangerous drug. The court is of the view that the harm done is equal to, if not more serious than, selling the dangerous drug to drug addicts on the street. This will not lessen the culpability of the defendant in the present case.

As for the part of the dangerous drug for the own consumption of the defendant, one must bear in mind that possession of dangerous drugs for one’s own use is itself a criminal offence.

After considering all the circumstances of the case, the court is of the view that there is no justification not to follow the guidelines, thus adopting 8 years’ imprisonment as the starting point.

Taking into account that part of the dangerous drug was for the defendant’s own consumption and after considering the authorities cited by the defence counsel, the court reduces the starting point to 7 years’ imprisonment.

Giving credit to the guilty plea of the defendant, the court sentences him to 4 years 8 months’ imprisonment.