HKSAR v. Mohabub Zaman Mithu

DCCC 437/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of possession of offensive weapons in a public place, contrary to s.33(1) and (2) of the Public Order Ordinance, Cap.245; and one charge of Trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Summary of facts

2.The defendant was stopped by Police officer at the junction of Nam Cheong Street and Hai Tan Street in Shamshuipo at about 3:06pm on 28^th February 2014. Upon search, 5 beef knives (each about 44cm long) were seized from the shoulder bag that he was carrying.

3.The defendant was then brought home for a house search at room 2, 5^th floor, no.35 Fuk Wing Street in Shamshuipo. Upon search, plastic bags containing a total of 3g of a crystalline solid containing 2.91g of methamphetamine hydrochloride (commonly known as the dangerous drug “Ice”); one plastic bag containing 6.38g of a crystalline solid containing 6.2g of Ice; one plastic bag containing 16.48g of a solid containing 5.14g of ketamine; an electronic scale and some empty transparent plastic bags were found inside.

4.The defendant was arrested and he claimed that he picked up the drugs from somewhere. The defendant was later interviewed with the assistance of interpreters. Under caution, the defendant claimed that he picked up the bag containing the drugs 20 days ago in the garbage room. The defendant also claimed that he picked up the bag containing the knives on the street. The defendant denied that he knew what was inside the bags. The defendant however admitted to living alone, and his landlord confirmed that the defendant was the only person who had the key to the room.

5.The estimated total market value for all the drugs seized is $4,592.73.

Previous convictions

6.The defendant is not of clear record but his previous convictions dated back to 2007 and are not similar to the present offences. I do not consider his conviction records an aggravating factor.

Mitigation

7.The defendant was born in Bangladesh and came to Hong Kong in 2004. He is 38 years old. His parents, brother and sister are still living in Bangladesh. The defendant made his torture claim in 2007 in Hong Kong and his application for asylum is still pending. The defendant is therefore not allowed to work in Hong Kong. Although he is receiving assistance from International Social Service of Hong Kong (“ISS”) in the form of a $1,200 rent subsidy as well as free food, the defendant’s actual rental payment is $1,700. Financial hardship is the reason why the defendant committed the present offences. He was promised $500 by a person known as ‘Shahadit Hussein’ to keep the drugs and the weapons.

8.Those representing the defendant had written to ISS to find out more about the defendant and was informed that he had attempted to commit suicide in 2011 when he was hospitalized for 2 months as a result.

Different drugs being trafficked

9.Given that the drugs that the defendant trafficked in contained both Ice and Ketamine, Mr. Omar submits that the court should apply the ‘conversion test’ as approved by the Court of Appeal in the case of HKSAR v Chan Yuk Leong, CACC 318/2013.

10.In Chan Yuk Leong, the trafficking involved different quantities of Ice, Cocaine and Ketamine, the Court of Appeal was asked to cross-check by way of the application of three tests to see if the sentence imposed by the trial judge was manifestly excessive.

11.The Absurdity Test is to take the whole quantity of drugs seized and assume they all contained the most serious drug, i.e. Ice in that case, and compare the starting point with the actual starting point taken.

12.The Conversion Test is to take the amount of drug considered to be at the lower end of toxicity, ketamine in that case, apply the appropriate sentencing guidelines (Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine) and arrive at a starting point. The court would then take that starting point and find the equivalent quantity of the more serious drug, i.e. Ice in that case, that would have led to the same starting point. That quantity of Ice would then be added to the original quantity of Ice and the guideline sentence for Ice is applied to come up with the adjusted starting point.

13.The Ratio Test is to take the percentage ratio of each of the different kind of drugs and apply that ratio to the sentence that would have been if all the drugs were the same kind and come up with an individually adjusted sentence. The final sentence would be the total of the 3 adjusted sentences.

Sentencing tariffs

14.It is not disputed that the range of sentence for trafficking up to 10g of Ice is that of 3 to 7 years’ imprisonment; and that for up to 10g of ketamine is that of 2 to 4 years’ imprisonment.

Sentence

15.The maximum sentence for charges 1 and 2 respectively is that of 3 years’ and life imprisonment.

16.Although I do sympathize with the defendant’s plight as a torture claimant in Hong Kong, given the gravity of the trafficking offence, his personal circumstances do not amount to very strong mitigating factors.

17.I find the ‘conversion test’ approach reasonable and useful and will adopt this approach in relation to charge 2.

18.For 5.14g of ketamine, I would take a starting point of 3 years’ imprisonment. Anything around 1g of Ice would have attracted an equivalent 3 year starting point and I will take the conversion to be 1g of Ice. The total amount of Ice is therefore 10.11g.

19.For 10.11g of Ice, applying the guideline sentence in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, I will adopt a starting point of 7 years’ imprisonment in relation to charge 2. The defendant pleaded guilty and is entitled to the usual one-third discount. He is therefore sentenced on charge 2 to 56 months’ imprisonment.

20.In relation to charge 1, the offensive weapon charge, given that there are 5 beef knives each of 44cm in length and given the inevitably sinister intention behind the person asking the defendant to keep the knives for him, which the defendant must have known or inferred, I find that a proper starting point is that of 12 months’ imprisonment, which is discounted to 8 months’ imprisonment in recognition of the defendant’s guilty plea.

Totality

21.Bearing in mind the personal circumstances of the defendant, yet also bearing in mind the different nature of the offences and the fact that the offences were not committed in the course of a single transaction, having taken a step back to consider, I find that 4 months of the sentence in charge 1 should be served consecutively to the sentence in charge 2, the balance concurrently. The defendant is therefore sentenced to a total of 60 months’ imprisonment for the 2 charges.