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Hksar v Majid Muhammad

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date28 February 2017
Year2017
Judgement NumberCACC157/2015
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC157A/2015 HKSAR v. MAJID MUHAMMAD

CACC 157/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2015

(ON APPEAL FROM DCCC NO. 75 OF 2015)

____________

BETWEEN
HKSAR Respondent
and
MAJID MUHAMMAD Appellant

____________

Before: Hon Lunn VP and Macrae JA in Court
Date of Hearing: 9 February 2017
Date of Judgment: 9 February 2017
Date of Reasons for Judgment: 28 February 2017

____________________________

REASONS FOR JUDGMENT

____________________________

Hon Lunn VP (giving the reasons for judgment of the court):

1. With the leave of Macrae JA [1], given on 26 August 2015, the appellant, an asylum seeker, appeals against the sentence of 44 months’ imprisonment imposed on him on 28 April 2015, following his conviction by District Judge Douglas Yau on his plea of guilty to one charge of trafficking in a dangerous drug, namely 23.6 grammes of a solid containing 11.4 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing, we dismissed the appeal and said that we would give reasons in due course. That, we do now.

The facts

2. At about 12:58 am on 27 November 2014, two police officers intercepted the appellant as he was acting furtively outside the Ground Floor, Ching Wo House, Tsz Ching Estate, Tsz Wan Shan, Kowloon. A search of his person revealed a transparent re-sealable plastic bag containing the dangerous drugs in the right front pocket of his jeans. Having been arrested and cautioned for unlawfully trafficking in dangerous drugs, the appellant remained silent.

3. In a subsequent video-recorded interview conducted after caution, the appellant said that he had met a person in Kowloon Park known as ‘Ali GG’ a week ago, and had been provided with his phone number. On the evening of 26 November 2014, Ali GG asked him to deliver the dangerous drugs to Tsz Wan Shan for a reward of $200. Having agreed to do so and having been provided with the dangerous drugs, as instructed the appellant took a taxi to Tsz Wan Shan, where he used his mobile to contact the person to whom he was to deliver the dangerous drugs. However, then the police intercepted, searched and arrested the appellant.

4. The estimated street value of the dangerous drugs was $16,416. The appellant agreed that he possessed the dangerous drugs for the purpose of unlawful trafficking.

Mitigation

5. In mitigation, Mr McGowan informed the judge that the appellant was a Pakistani national who was a torture claimant in Hong Kong. Mr McGowan said that, having abused both cannabis and heroin for several years in Pakistan, on coming to Hong Kong the appellant continued to abuse cannabis and on occasions consumed cocaine. One of the persons from whom he bought dangerous drugs was Ali GG.

6. Then, Mr McGowan said that the appellant had collected the cocaine the subject of the charge on the instructions of Ali GG from a man in Tsim Sha Tsui, after which, on the telephone instructions of Ali GG, he set off in a taxi to Tsz Wan Shan to meet Ali GG. He believed that, together with others, the two of them would consume some of the cocaine that night. For his part, he believed that he would consume about three grammes of the solid which contained cocaine.

Reasons for Sentence

7. In sentencing the appellant, the judge noted that he was a 26‑year-old, unemployed ‘torture claimant’, who had a conviction for trafficking unlawfully in dangerous drugs in August 2014. Further, he said that the appellant had committed the current offence whilst on police bail. The judge noted that in his video recorded interview the appellant had said that he unlawfully trafficked in the dangerous drugs for a reward of $200, which was to be paid to him by Ali GG at Sham Shui Po MTR station, after he had made delivery of the dangerous drugs at Tsz Wan Shan.

8. Having averted to the judgments of this Court establishing that the sentencing guidelines for trafficking unlawfully in heroin applied to trafficking unlawfully in cocaine, the judge said that the range of sentence for trafficking unlawfully in cocaine in quantities between 10 and 50 grammes was 5 to 8 years’ imprisonment.[2]

Self-consumption

9. The judge rejected the assertion that about three grammes of the overall solid mixture of 23.6 grammes was for self-consumption by the appellant:[3]

“I find that given that the defendant was unemployed and was receiving only $200 from the International Social Service; given that the defendant admitted that he was receiving a reward of $200 for the delivery of the cocaine; given that there was no paraphernalia for using the cocaine found on his person; given that self-consumption was only mentioned for the very first time today in court; and given that the defendant had specifically admitted at paragraph 8 of the Amended Summary of Facts that at the material time the drugs found on him were all for the purpose of trafficking, the suggestion that 3g of the solid was for the defendant’s self-consumption is inherently improbable, and I reject the contention.”

Starting point

10. Then, the judge identified 63 months’ imprisonment as the starting point for the whole of the quantity of cocaine, without taking into account the aggravating factor of the fact that the offence was committed whilst the appellant was on police bail for another offence of unlawfully trafficking in dangerous drugs.

Enhancement

11. Next, the judge said that, to reflect the aggravating factor that the offence was committed by the appellant whilst on police bail, he increased the sentence by 3 months’ imprisonment.

Discount

12. Determining that the only mitigating factor was the appellant’s plea of guilty, the judge afforded the appellant a discount of one-third from the resulting total starting point for sentence.

Sentence

13. In the result, the judge sentenced the appellant to 44 months’ imprisonment.

Consecutive sentences

14. Then, the judge noted that there was no connection between the current offence and the appellant’s earlier conviction, of 10 April 2015, for unlawfully trafficking in dangerous drugs on 10 August 2014, for which offence he was on bail at the time of his conviction for this offence. In the result, he determined that they were not part of a “single transaction”. Next, having stated that he had taken a “step back to consider” the issue, the judge ordered that the sentence of 44 months’ imprisonment be served consecutively to the sentence of 2 months’ imprisonment imposed for the earlier conviction.

Grounds of appeal against sentence

15. Mr McGowan advanced multiple grounds of appeal, namely that:

(i) the judge erred in adopting a starting point of 63 months’ imprisonment, rather than an arithmetic calculation based on the 11.4 grammes of cocaine, namely 61 months’ imprisonment;

(ii) the judge erred in increasing the said starting point by three months because the offence was committed whilst on police bail, which enhancement was greater than the sentence of 2 months’ imprisonment imposed for the offence for which he was on bail;

(iii) the judge failed to take into account the principle of totality by ordering the sentence to run wholly consecutively to his previous sentence, rather than wholly concurrently to that sentence;

(iv) the judge erred in failing to give a discount for the element of the appellant’s self-consumption of the dangerous drugs in which he was trafficking unlawfully; further, he erred in relying on the absence of paraphernalia for consumption of the cocaine in finding that the dangerous drugs were not for self-consumption by the appellant;

(v) the appellant was denied the opportunity to obtain a discount in sentence, to reflect his assistance to the authorities, because the authorities did not act appropriately on the information provided to them by the appellant; and

(vi) the overall sentence was manifestly excessive and/or wrong in principle.

The respondent’s submissions

16. Mr David Chan, on behalf of the respondent, submitted that on an arithmetic calculation, based on the weight of the cocaine, the starting point for sentence should have been 61.26 months’ imprisonment. The starting point of 63 months’ imprisonment taken by the judge was within the appropriate range and his discretion.

17. Of the judge’s enhancement of sentence by 3 months’ imprisonment to reflect the aggravating factor of the commission of the offence whilst on police bail, Mr Chan submitted that the fact that the bail was granted by the police, rather than that of a court, did not lessen the seriousness of the commission of an offence whilst on bail. The appellant’s conduct was an aggravating factor in the commission of the offence, evidencing a disregard for the law and persistence in offending.[4] Also, although the judge did not advert to it, the fact the appellant committed the offence whilst he was permitted to remain in Hong Kong as an asylum seeker was an aggravating factor in the commission of the offence[5]. That, by itself justified an enhancement of sentence of 3 months’ imprisonment. Accordingly, the enhancement of sentence of 3...

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