Case Detail

CACC 98/2019

[2020] HKCA 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2019

(ON APPEAL FROM DCCC NO 891 OF 2018)

_______________

	HKSAR	Respondent
	v
	ISLAM AZHARUL	Appellant

_______________

Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 3 January 2020

Date of Judgment: 3 January 2020

Date of Reasons for Judgment: 7 January 2020

__________________________________

R E A S O N S F O R J U D G M E N T

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

1. With leave granted by Macrae VP on 10 October 2019, the appellant applied to appeal his sentence of 5 years’ imprisonment, imposed on him by HH Judge Josiah Lam (the judge) on 12 March 2019, following his plea of guilty to a single charge of trafficking in dangerous drugs, namely 24.20 grammes of a solid containing 14.30 grammes of cocaine, 46.50 grammes of cannabis in herbal form, 279.39 grammes of cannabis resin, and 36 tablets and one tablet fragment containing 7.56 grammes of 3, 4-methylenedioxymethamphetamine (commonly known as “Ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. At the conclusion of the hearing, we allowed the appeal, set aside the sentence and substituted it with a sentence of 4 years and 8 months’ imprisonment. We said we would hand down our reasons for doing so in due course and these are our reasons.

3. In his judgment granting leave, Macrae VP addressed the appellant’s complaint about his sentence. We agreed with the reasoning and observations of Macrae VP, and do not propose to repeat them, although we will briefly explain how the sentence should have been approached and why we substituted it with the one we imposed.

4. The facts as agreed by the appellant when he pleaded guilty can be briefly stated as follows.

5. In the evening of 28 May 2018, the appellant, a non-refoulement claimant and Form 8 recognizance holder from Bangladesh, was intercepted by the police when he came out of his room in a guesthouse in Tsim Sha Tsui. Upon a search of the shoulder bag he was carrying, the dangerous drugs which formed the subject matter of the charge were found, contained in over 90 small bags and packets, as well as a knife containing traces of cocaine and Ecstasy and an electronic scale. He also had on him $1,800 cash. He had rented the room in the guesthouse from 12 May to 1 June 2018 at a rate of $240 per day.

6. The estimated street value of all the dangerous drugs seized was just over $73,000.

7. Even though a body check of the appellant proved positive for amphetamines and cocaine, he did not submit that some of the dangerous drugs were for his own consumption. He admitted that he possessed the dangerous drugs for the purpose of trafficking.

8. In sentencing the appellant, the judge explained that he considered that trafficking in more than one kind of dangerous drugs at the same time was an aggravating factor. In respect of the four different drug components in the charge, the judge stipulated a starting point of 5 years and 3 months’ imprisonment for the cocaine,[1] and 3 years and 6 months’ imprisonment for the Ecstasy,[2] pursuant to the relevant guidelines. Since there were no guidelines for trafficking in herbal cannabis, the judge adopted a starting point of 3 months’ imprisonment for the total quantity of cannabis resin and herbal cannabis. He then adopted a notional sentence after trial of 7½ years’ imprisonment for the charge as a whole before granting the appellant a one-third discount for his plea, resulting in a sentence of 5 years’ imprisonment.

9. The grounds of appeal aver that the sentence was manifestly excessive because the judge failed adequately to consider the totality of sentence in determining the appropriate notional sentence after trial, and failed to adopt the combined approach in calculating the total sentence, resulting in the 7.56 grammes of Ecstasy effectively receiving a higher sentence than if it had been cocaine, which was a more potent drug.

10. Mr John Marray, for the appellant, submits that if one adopts the “combined approach” to sentencing for multiple dangerous drugs, the overall starting point for the four quantities of drugs included in the charge should have been in the region of 5½ years’ imprisonment.[3] However, this does not factor in the cannabis and hence an overall starting point in the region of 5 years and 9 months’ imprisonment is, in our view, the correct one.

11. Nevertheless, as rightly pointed out by Mr Anthony Chau, counsel for the respondent, the notional sentence does not take into account three aggravating features that are present in the case.

12. The first aggravating feature is that the appellant was not a mere courier or storer of the drugs to which the sentencing guidelines are primarily directed. He submitted that the appellant played a role far greater than that of a mere courier which warranted a further enhancement of the notional sentence. He pointed out that the appellant, a non-refoulement claimant, had rented a room for 20 days at a total cost of $4,800 and had on him $1,800 cash when he was arrested. The appellant was found with over 90 bags and packets of drugs together with a knife with traces of cocaine and Ecstasy and an electronic scale. Mr Chau contended that the appellant was actively taking this consignment of dangerous drugs onto the streets for dissemination to members of the public.

13. Mr Marray argued that it is not uncommon in this type of offence to which the relevant guidelines apply for the offender to be found with a number of bags containing the drugs in question.

14. We observe, however, that the facts in this case reveal that the appellant was heavily involved in the packaging and dissemination of the dangerous drugs and as a consequence this heightened his culpability or aggravated his offending. We consider that an enhancement of 6 months’ imprisonment would be appropriate for this factor, although we point out that this is a matter that could have easily been taken into account when determining the starting point that should be adopted. As a matter of general principle, a starting point is based on the gravity of the criminal conduct and the responsibility for it by the offender.

15. The second aggravating feature is the multiplicity of drugs.[4] There were four different kinds of drugs involved in the present case, which is a factor deserving of an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”[5] The appellant was trafficking in both hard and soft drugs, and in our view, this would also warrant an enhancement of 6 months’ imprisonment.[6]

16. The third aggravating feature is the fact that the appellant was a Form 8 recognizance holder at the time of the offence,[7] and in our view, this would warrant an enhancement of 9 months’ imprisonment.

17. The enhancements for the three aggravating factors amount, therefore, to 21 months. It would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate. Accordingly, in order to arrive at a just and effective total enhancement, we consider that in the circumstances 15 months’ imprisonment would be appropriate.

18. Taking the total enhancement for the aggravating factors into account, this will result in a notional sentence after trial of 7 years’ imprisonment. Even though the judge did not delineate these factors in his reasons for sentence, he may have had them in mind when he adopted a notional sentence after trial of 7½ years’ imprisonment.

19. As the appellant entered a timely plea of guilty, he is entitled to a one-third reduction to his notional sentence of 7 years, which results in a final sentence of 4 years and 8 months’ imprisonment.

20. This case is a useful reminder of the importance for a sentencing court in following the discipline of taking the necessary steps when determining a just and appropriate sentence to be imposed upon an offender. In the case of a single offence, this usually involves in its basic form the sentencing court first adopting a starting point based on the blameworthiness of the offender and the harm caused by the offence. Secondly, the sentencing court should list the aggravating factors, explaining which factors have or have not been taken into account and specifying the amount of enhancement given for the factors that have been taken into account. Thirdly, the sentencing court should list the mitigating factors, explaining which factors have or have not been taken into account and specifying the amount of reduction given for the factors that have been taken into account. Having specified the enhancements given for the aggravating factors, it is important for the sentencing court to ensure that the aggregation of the enhancements does not result in an oppressive and overloaded sentence, and by the application of the totality principle this will require determining an appropriate effective total of the enhancements.

Conclusion

21. For these reasons, we allowed the appeal. We set aside the sentence of the previous term of imprisonment, and in substitution sentenced the appellant to 4 years and 8 months’ imprisonment.

(Andrew Macrae)	(Kevin Zervos)
Vice President	Justice of Appeal

Mr Anthony Chau, ADPP of the Department of Justice, for the respondent

Mr John Marray, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the appellant

[1] R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 2 HKCLR 69.

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

[3] The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency) and then further account of significant quantities of the other less serious drugs. See HKSAR v Chan Yuk Leong, unrep., CACC 318/2013, 8 April 2014 and HKSAR v Cheung Wai Man, unrep., CACC 250/2017, 28 November 2018.

[4] HKSAR v Law Num Chun [2014] 5 HKLRD, paras 19 and 20.

[5] HKSAR v Wan Lau Mei, unrep., CACC 389/2013, 27 March 2014, para 40.

[6] In Wan Lau Mei, ibid., at para 41, it was considered that a 6-month enhancement was appropriate for this factor.

[7] See HKSAR v Ali Saif; unrep., CACC 309/2017, 14 June 2018 and HKSAR v Don Amarasinghalage Don Chandra Janaka, unrep., CACC 377 2016, 25 October 2017.

CACC 98 /2019

[2019] HKCA 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2019

(ON APPEAL FROM DCCC NO 891 OF 2018)

________________________

BETWEEN

	HKSAR	Respondent
	and
	ISLAM AZHARUL	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	10 October 2019
Date of Judgment:	10 October 2019

________________________

J U D G M E N T

________________________

1. The applicant pleaded guilty in the District Court to a single charge of trafficking unlawfully in dangerous drugs, namely, 24.20 grammes of a solid containing 14.30 grammes of cocaine, 46.50 grammes of cannabis in herbal form, 279.39 grammes of cannabis resin, and 36 tablets and one tablet fragment containing 7.56 grammes of 3,4-methylenedioxymethamphetamine (“MDMA”, commonly known as “Ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. He was sentenced to 5 years’ imprisonment by HH Judge Josiah Lam (“the judge”) on 12 March 2019. Thereafter, he applied for leave to appeal against sentence (by way of Form XI) on 22 March 2019.

The Facts

3. In the evening of 28 May 2018, the applicant, a non-refoulement claimant and Form 8 recognizance holder from Bangladesh, was intercepted by the police when he came out from his room in a guesthouse in Tsim Sha Tsui. Upon a search of the shoulder-bag he was carrying, the dangerous drugs which formed the subject matter of the charge were found, contained in over 90 small bags and packets; as well as a knife containing traces of dangerous drugs and an electronic scale.

4. The applicant remained silent upon arrest and caution. In a subsequent video-recorded interview under caution, he denied knowledge or ownership of the seized dangerous drugs. He claimed that he was unemployed with no income; and was not in the habit of taking drugs. He said that he rented the room from which he was seen emerging and had the key on him.

5. The estimated street value of all of the dangerous drugs seized was just over HK$73,000.

6. The applicant nevertheless admitted at trial that he possessed the dangerous drugs for the purpose of trafficking. It was expressly accepted on behalf of the applicant, the matter having been stood down for his solicitor to take specific instructions on the matter, that there was no suggestion of there being a significant proportion of the drugs in question for the applicant’s own consumption. A urine test on the applicant upon his admission to Lai Chi Kok Reception Centre did, however, give positive results for amphetamines and cocaine.

Mitigation

7. The applicant was 27 years of age. He claimed to have been married with three young children in Bangladesh, where he ran a cosmetics shop before coming to Hong Kong.

8. In respect of the calculation of sentence, the judge was urged to adopt a “combined approach” for the various drugs in question, and not to adopt an overall starting point above the jurisdictional limit of the District Court of 7 years’ imprisonment.

Reasons for sentence

9. Although noting the applicant’s clear record in Hong Kong and his family circumstances, the judge nevertheless considered his trafficking in more than one kind of dangerous drug at the same time to be an aggravating factor.

10. In respect of the four different drug components in the charge, namely 14.30 grammes of cocaine narcotic, 7.56 grammes of MDMA, 279.39 grammes of cannabis resin, and 46.50 grammes of herbal cannabis, the judge stipulated starting points of 5 years and 3 months’ imprisonment for the cocaine[1] and 3 years and 6 months’ imprisonment for the MDMA[2], pursuant to the relevant guidelines. Since there were no guidelines for trafficking in herbal cannabis, the judge adopted a combined starting point of 3 months’ imprisonment for the total quantity of cannabis resin[3] and herbal cannabis.

11. The judge then adopted a notional sentence after trial of 7½ years’ imprisonment for the charge as a whole before granting him a full one-third discount for his plea. In the event, he sentenced the applicant to imprisonment for 5 years.

Grounds of appeal

12. The grounds of appeal aver that the sentence was manifestly excessive because the judge failed adequately to consider the totality of sentence in determining the appropriate notional sentence after trial, and failed to adopt the combined approach in calculating the total sentence, resulting in the 7.56 grammes of MDMA effectively receiving a higher sentence than if it had been cocaine, which was a more potent drug.

13. Mr Marray, on behalf of the applicant at this application, took no issue with the starting points adopted by the judge for the individual dangerous drugs concerned. However, he submitted that if one were to treat the MDMA as though it were the more serious drug cocaine, the resulting combined quantity of 21.86 grammes of cocaine (namely, by adding 7.56 grammes to 14.30 grammes), would have attracted a notional sentence after trial of 5 years and 10 months’ imprisonment, which was significantly lower than the notional sentence actually adopted of 7½ years’ imprisonment. It was submitted that the judge’s assessment of the overall notional sentence after trial failed the “absurdity test” referred to in HKSAR v Yip Wai Yin & Anor[4] and HKSAR v Chan Yuk Leong[5].

14. Mr Marray argued that, if one applied the “conversion test”, 7.56 grammes of MDMA would correspond to 3½ years’ imprisonment, which would roughly equate to 2 grammes of cocaine under the sentencing tariffs. Accordingly, the addition of the 2 grammes to the existing 14.30 grammes of cocaine would result in 16.30 grammes, which mathematically would attract a starting point of 5½ years’ imprisonment.

15. Similarly, if one applied the “ratio test”, the starting point would also be 5½ years’ imprisonment, since the ratio of cocaine to MDMA was about 2:1. Accordingly, the resulting sentence was manifestly excessive.

Respondent’s submissions

16. Mr Sean, on behalf of the respondent, submitted that the sentencing court should have reflected two significant aggravating factors in the overall sentence. Firstly, there were four different kinds of drugs involved in the present case, which is a factor recognised by the Court as deserving of an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market that the trafficker in only one kind of drug”[6]. Secondly, the applicant was committing the serious crime of trafficking in dangerous drugs when he was a non-refoulement claimant and Form 8 recognizance holder. Mr Sean referred to the decision of the Court in HKSAR v SK Hasnainzzaman[7], submitting that the enhancement for the applicant’s status as a Form 8 recognizance holder should not have been less than 6 months’ imprisonment. Yet, while the judge took the first factor into account, he did not mention the second one at all.

17. When, therefore, one took these two aggravating features into account, the starting point adopted by the judge was neither manifestly excessive nor wrong in principle.

Consideration

18. The applicant was intercepted when leaving his room, carrying a large selection of different dangerous drugs with him in his bag. He was plainly on a mission from the place where he was living or staying to traffic in various kinds of dangerous drugs. Mr Marray suggests that if one adopts the “combined approach” to sentencing for multiple dangerous drugs, the overall starting point for the four quantities of drugs included in the charge should have been in the region of 5½ years’ imprisonment; although I note that his predecessor at trial, using the same approach, advocated a starting point of 5 years and 10½ months’ imprisonment. Mr Sean, on the other hand, contends that if one were dealing only with the cocaine and the MDMA, the overall starting point should have been something over 5 years and 8 months’ imprisonment, when viewed arithmetically. However, if one factored in the cannabis as well, then the starting point should have been in the region of 5 years and 11 months’ imprisonment.

19. I tend to think at this stage, subject to further argument there might be, that an overall starting point in the region of 5 years 9 months’ imprisonment is probably a more realistic one. If one assumes, therefore, that the overall starting point should have been in the region of 5 years 9 months’ imprisonment, then the question becomes to what extent that starting point should have been enhanced for the two aggravating features present. Specifically, did they warrant an enhancement of 21 months’ imprisonment, thus taking the notional sentence after trial to 7½ years’ imprisonment?

20. In HKSAR v Ali Saif[8], the Court said of the second aggravating feature highlighted above (the Form 8 factor), at paragraph 17:

“…we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non‑refoulement applicants. Furthermore, Form 8 recognizance holders whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

21. In HKSAR v Shah Syed Arif[9], which involved the trafficking of 55.88 grammes of cocaine narcotic with a street value of $145,983 by a Form 8 recognizance holder, the Court applied an enhancement of 12 months’ imprisonment for this factor; whilst in HKSAR v Don Amarasinghalage Don Chandra Janaka[10], in respect of trafficking in 25.91 grammes of methamphetamine hydrochloride narcotic (commonly known as “Ice”) valued at $11,103, the same factor attracted an enhancement from the Court of 9 months’ imprisonment. Given the circumstances of the present case, involving the trafficking in 14.30 grammes of cocaine narcotic, 7.56 grammes of MDMA and 325.89 grammes of cannabis (in herbal and resin form) valued at $73,472, the sentence on the applicant could have been enhanced by 9 months’ imprisonment for this factor.

22. As for the first aggravating feature (the multiple drugs factor), the applicant was trafficking in both hard and soft drugs. As such, he was catering to a wider section of the drugs market, which would have included younger customers and teenagers taking MDMA or Ecstasy. It may be recalled that in the leading case of Secretary for Justice v Hii Siew Cheng[11], in which the Court laid down guidelines for trafficking in Ketamine and Ecstasy, having first received expert evidence about the prevalence and effects of each drug, the Court voiced its conclusion that “the most important features of the evidence are that both drugs are targeted at the young, particularly those under 21”[12]. It would likewise be rather meaningless to consider an enhancement of less than 6 months’ imprisonment for this factor, which is not so much linked to volume or quantity as to the multiplicity of different drugs on offer by the applicant. I note that in Wan Lau Mei[13], the Court considered a 6‑month enhancement for this factor appropriate on its facts.

23. If these two factors together warranted an enhancement of the starting point in the region of 15 months’ imprisonment, then taking a starting point for the narcotic value of the various dangerous drugs concerned of 5 years 9 months’ imprisonment as a realistic one, the notional sentence after trial should have been in the region of 7 years’ imprisonment. The notional sentence after trial adopted by the judge, before reduction for plea, was, of course, 7½ years’ imprisonment.

24. To the extent that sentencing in drug trafficking cases is primarily an arithmetical exercise, I consider the appeal to be reasonably arguable. However, it is not purely an arithmetical exercise: the surrounding circumstances of the trafficking are also relevant. I would therefore caution the applicant that the Court of Appeal may feel it unnecessary to tinker with the sentence when the facts clearly established that the applicant was actively taking this consignment of dangerous drugs out of his home onto the streets for obvious dissemination to members of the public, which would inevitably have included youngsters. That will, however, be a matter for the Court to consider.

25. For present purposes, I grant the applicant leave to appeal.

	(Andrew Macrae)
	Vice President

Mr Eddie Sean SADPP, of the Department of Justice, for the Respondent

Mr John Marray, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the Applicant

[1] Trafficking in between 10 and 50 grammes of cocaine would attract a starting point of between 5 and 8 years’ imprisonment.

[2] Trafficking in between 1 and 10 grammes of MDMA would attract a starting point of between 2 and 4 years’ imprisonment.

[3] Trafficking in under 2,000 grammes of cannabis resin would attract up to 16 months’ imprisonment.

[4] HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367.

[5] HKSAR v Chan Yuk Leong (Unrep., CACC 318/2013, 8 April 2014).

[6] HKSAR v Yim Hung Lui Ricky (Unrep., CACC 266/2011, 13 February 2012), at paragraph 11; see also HKSAR v Wan Lau Mei (Unrep.,CACC 389/2013, 27 March 2014), at paragraph 40.

[7] HKSAR v SK Hasnainzzaman (Unrep., CACC 301/2017, 27 June 2018).

[8] HKSAR v Ali Saif (Unrep., CACC 309/2017, 14 June 2018).

[9] HKSAR v Shah Syed Arif [2016] 4 HKLRD 664.

[10] HKSAR v Don Amarasinghalage Don Chandra Janaka (Unrep., CACC 377/2016, 25 October 2017).

[11] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1; recently re-affirmed in HKSAR v Chan Ka Yiu & Others (Unrep., CACC 147/2016, CACC 346/2016 & CACC 375/2017 consolidated, 18 July 2018).

[12] Ibid., at para 85.

[13] At paragraph 41.

HKSAR v. ISLAM AZHARUL

Related cases with same parties

Files (2)