HKSAR v. Zaheer Muhammad
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HCCC 146/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 146 OF 2014 -----------------
--------------------------------- COURT: The defendant was convicted by the jury of one count of possession of 1.85 grammes of cocaine. On 20 August 2013 at about 5.40 pm, a team of police officers was observing at the staircase between the 1st floor and 2nd floor of Man Ying Building, Man Yuen Street, Yau Ma Tei. PC9000 saw the defendant coming up the staircase and exit through the smokedoor on the left. He and PC8080 followed and stopped the defendant while the defendant was entering room 1 of flat 15. After controlling the defendant, PC9000 searched the defendant and found a packet of cocaine from his right trouser pocket. PC9000 arrested the defendant for possession of a dangerous drug. The defendant said nothing. After his arrest, a urine test was done which confirmed that his urine was positive for “Ice” and cannabis, but negative for cocaine. During the trial, the defendant admitted only taking “Ice” and cannabis for about one year before the offence. The defendant is 36. He was born in Pakistan in 1978. He is married with a 6-year-old daughter. His family is living in Pakistan. He received Primary Education up to level 8 in Pakistan. He was a kitchen worker. He had dispute over land with his uncle and fled to Hong Kong illegally in 2009. He had lodged a torture claim since and the result is still pending. He was unemployed at the time of the offence. He relied on the support from International Social Service. The defendant has two previous convictions. He was sentenced to 14 months’ imprisonment for taking up work without the authority of the Director of Immigration. He was convicted of possession of “Ice” on 21 March 2013. He was sentenced to 2 months’ imprisonment, suspended for 2 years. The defendant committed the present offence only about 5 months after the suspended sentence was ordered. I take this as an aggravating factor. In the Drug Addiction Treatment Centre report, the defendant indicated great remorse and pleaded for leniency. The medical officer confirms that the defendant is not an addict. He is not suitable for Drug Addiction Treatment Centre. According to HKSAR v Mok Cho Tik CACC 165/2000, the Court of Appealaccepted that the starting point for mere possession of a quantity of dangerous drugs, which a bona fide user would normally have in his possession, should in the range of 12 to 18 months’ imprisonment. However, the defendant was not a bona fide user of cocaine. I take this into account in sentencing. For possession of 1.85 grammes of cocaine, I take a starting point of 15 months’ imprisonment. Given that the defendant had not been taking cocaine as confirmed by the urine test, and his own evidence, the latent risk is very high. I enhance the sentence by 9 months. I sentence the defendant to 24 months’ imprisonment for this charge. There being no exceptional circumstances, I also activate the suspended sentence. I order that the 2 months’ imprisonment in KCCC 618/2013 to be served consecutively. The defendant has to serve a total of 26 months’ imprisonment. | ||||||||||||||||||||||||