DCCC437/2014 HKSAR v. MOHABUB ZAMAN MITHU - LawHero
DCCC437/2014
區域法院（刑事）HH Judge Douglas T.H. Yau6/11/2014
DCCC437/2014
A A
B DCCC 437/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 437 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
MOHABUB ZAMAN MITHU
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 7th November 2014 at 11:36 am I
Present: Mr. Mark Sutherland, Counsel on fiat, for HKSAR
J J
Mr. A.M. Omar, instructed by M/s George Chan & Co,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Possession of offensive weapons in a public place (在公 L
眾地方管有攻擊性武器)
M M
[2] Trafficking in dangerous drugs (販運危險藥物)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P P
1. The defendant pleaded guilty to one charge of possession of
Q
offensive weapons in a public place, contrary to s.33(1) and (2) of the Q
Public Order Ordinance, Cap.245; and one charge of Trafficking in
R R
dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs
S Ordinance, Cap.134. S
T T
Summary of facts
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 2 -
A A
B B
2. The defendant was stopped by Police officer at the junction of
C C
Nam Cheong Street and Hai Tan Street in Shamshuipo at about 3:06pm on
D 28th February 2014. Upon search, 5 beef knives (each about 44cm long) D
were seized from the shoulder bag that he was carrying.
E E
F 3. The defendant was then brought home for a house search at F
room 2, 5th floor, no.35 Fuk Wing Street in Shamshuipo. Upon search,
G G
plastic bags containing a total of 3g of a crystalline solid containing 2.91g
H of methamphetamine hydrochloride (commonly known as the dangerous H
drug “Ice”); one plastic bag containing 6.38g of a crystalline solid
I I
containing 6.2g of Ice; one plastic bag containing 16.48g of a solid
J containing 5.14g of ketamine; an electronic scale and some empty J
transparent plastic bags were found inside.
K K
L L
4. The defendant was arrested and he claimed that he picked up
M
the drugs from somewhere. The defendant was later interviewed with the M
assistance of interpreters. Under caution, the defendant claimed that he
N N
picked up the bag containing the drugs 20 days ago in the garbage room.
O The defendant also claimed that he picked up the bag containing the knives O
on the street. The defendant denied that he knew what was inside the bags.
P P
The defendant however admitted to living alone, and his landlord
Q confirmed that the defendant was the only person who had the key to the Q
room.
R R
S 5. The estimated total market value for all the drugs seized is S
$4,592.73.
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 3 -
A A
B Previous convictions B
C C
6. The defendant is not of clear record but his previous
D convictions dated back to 2007 and are not similar to the present offences. D
I do not consider his conviction records an aggravating factor.
E E
F Mitigation F
G G
7. The defendant was born in Bangladesh and came to Hong
H Kong in 2004. He is 38 years old. His parents, brother and sister are still H
living in Bangladesh. The defendant made his torture claim in 2007 in
I I
Hong Kong and his application for asylum is still pending. The defendant
J is therefore not allowed to work in Hong Kong. Although he is receiving J
assistance from International Social Service of Hong Kong (“ISS”) in the
K K
form of a $1,200 rent subsidy as well as free food, the defendant’s actual
L L
rental payment is $1,700. Financial hardship is the reason why the
M
defendant committed the present offences. He was promised $500 by a M
person known as ‘Shahadit Hussein’ to keep the drugs and the weapons.
N N
O 8. Those representing the defendant had written to ISS to find O
out more about the defendant and was informed that he had attempted to
P P
commit suicide in 2011 when he was hospitalized for 2 months as a result.
Q Q
Different drugs being trafficked
R R
S 9. Given that the drugs that the defendant trafficked in contained S
both Ice and Ketamine, Mr. Omar submits that the court should apply the
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 4 -
A A
B ‘conversion test’ as approved by the Court of Appeal in the case of HKSAR B
v Chan Yuk Leong, CACC 318/2013.
C C
D 10. In Chan Yuk Leong, the trafficking involved different D
quantities of Ice, Cocaine and Ketamine, the Court of Appeal was asked to
E E
cross-check by way of the application of three tests to see if the sentence
F imposed by the trial judge was manifestly excessive. F
G G
11. The Absurdity Test is to take the whole quantity of drugs
H seized and assume they all contained the most serious drug, i.e. Ice in that H
case, and compare the starting point with the actual starting point taken.
I I
J 12. The Conversion Test is to take the amount of drug considered J
to be at the lower end of toxicity, ketamine in that case, apply the
K K
appropriate sentencing guidelines (Secretary for Justice v Hii Siew Cheng
L L
[2009] 1 HKLRD 1 for ketamine) and arrive at a starting point. The court
M
would then take that starting point and find the equivalent quantity of the M
more serious drug, i.e. Ice in that case, that would have led to the same
N N
starting point. That quantity of Ice would then be added to the original
O quantity of Ice and the guideline sentence for Ice is applied to come up O
with the adjusted starting point.
P P
Q 13. The Ratio Test is to take the percentage ratio of each of the Q
different kind of drugs and apply that ratio to the sentence that would have
R R
been if all the drugs were the same kind and come up with an individually
S adjusted sentence. The final sentence would be the total of the 3 adjusted S
sentences.
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 5 -
A A
B Sentencing tariffs B
C C
14. It is not disputed that the range of sentence for trafficking up
D to 10g of Ice is that of 3 to 7 years’ imprisonment; and that for up to 10g of D
ketamine is that of 2 to 4 years’ imprisonment.
E E
F Sentence F
G G
15. The maximum sentence for charges 1 and 2 respectively is
H that of 3 years’ and life imprisonment. H
I I
16. Although I do sympathize with the defendant’s plight as a
J torture claimant in Hong Kong, given the gravity of the trafficking offence, J
his personal circumstances do not amount to very strong mitigating factors.
K K
L
17. I find the ‘conversion test’ approach reasonable and useful L
M
and will adopt this approach in relation to charge 2. M
N N
18. For 5.14g of ketamine, I would take a starting point of 3
O years’ imprisonment. Anything around 1g of Ice would have attracted an O
equivalent 3 year starting point and I will take the conversion to be 1g of
P P
Ice. The total amount of Ice is therefore 10.11g.
Q Q
19. For 10.11g of Ice, applying the guideline sentence in Attorney
R R
General v Ching Kwok Hung [1991] 2 HKLR 125, I will adopt a starting
S point of 7 years’ imprisonment in relation to charge 2. The defendant S
pleaded guilty and is entitled to the usual one-third discount. He is
T T
therefore sentenced on charge 2 to 56 months’ imprisonment.
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 6 -
A A
B B
20. In relation to charge 1, the offensive weapon charge, given
C C
that there are 5 beef knives each of 44cm in length and given the inevitably
D sinister intention behind the person asking the defendant to keep the knives D
for him, which the defendant must have known or inferred, I find that a
E E
proper starting point is that of 12 months’ imprisonment, which is
F discounted to 8 months’ imprisonment in recognition of the defendant’s F
guilty plea.
G G
H Totality H
I I
21. Bearing in mind the personal circumstances of the defendant,
J yet also bearing in mind the different nature of the offences and the fact J
that the offences were not committed in the course of a single transaction,
K K
having taken a step back to consider, I find that 4 months of the sentence in
L L
charge 1 should be served consecutively to the sentence in charge 2, the
M
balance concurrently. The defendant is therefore sentenced to a total of 60 M
months’ imprisonment for the 2 charges.
N N
O O
P P
(Douglas T.H. Yau)
District Judge
Q Q
R R
S S
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
A A
B DCCC 437/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 437 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
MOHABUB ZAMAN MITHU
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 7th November 2014 at 11:36 am I
Present: Mr. Mark Sutherland, Counsel on fiat, for HKSAR
J J
Mr. A.M. Omar, instructed by M/s George Chan & Co,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Possession of offensive weapons in a public place (在公 L
眾地方管有攻擊性武器)
M M
[2] Trafficking in dangerous drugs (販運危險藥物)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P P
1. The defendant pleaded guilty to one charge of possession of
Q
offensive weapons in a public place, contrary to s.33(1) and (2) of the Q
Public Order Ordinance, Cap.245; and one charge of Trafficking in
R R
dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs
S Ordinance, Cap.134. S
T T
Summary of facts
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 2 -
A A
B B
2. The defendant was stopped by Police officer at the junction of
C C
Nam Cheong Street and Hai Tan Street in Shamshuipo at about 3:06pm on
D 28th February 2014. Upon search, 5 beef knives (each about 44cm long) D
were seized from the shoulder bag that he was carrying.
E E
F 3. The defendant was then brought home for a house search at F
room 2, 5th floor, no.35 Fuk Wing Street in Shamshuipo. Upon search,
G G
plastic bags containing a total of 3g of a crystalline solid containing 2.91g
H of methamphetamine hydrochloride (commonly known as the dangerous H
drug “Ice”); one plastic bag containing 6.38g of a crystalline solid
I I
containing 6.2g of Ice; one plastic bag containing 16.48g of a solid
J containing 5.14g of ketamine; an electronic scale and some empty J
transparent plastic bags were found inside.
K K
L L
4. The defendant was arrested and he claimed that he picked up
M
the drugs from somewhere. The defendant was later interviewed with the M
assistance of interpreters. Under caution, the defendant claimed that he
N N
picked up the bag containing the drugs 20 days ago in the garbage room.
O The defendant also claimed that he picked up the bag containing the knives O
on the street. The defendant denied that he knew what was inside the bags.
P P
The defendant however admitted to living alone, and his landlord
Q confirmed that the defendant was the only person who had the key to the Q
room.
R R
S 5. The estimated total market value for all the drugs seized is S
$4,592.73.
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 3 -
A A
B Previous convictions B
C C
6. The defendant is not of clear record but his previous
D convictions dated back to 2007 and are not similar to the present offences. D
I do not consider his conviction records an aggravating factor.
E E
F Mitigation F
G G
7. The defendant was born in Bangladesh and came to Hong
H Kong in 2004. He is 38 years old. His parents, brother and sister are still H
living in Bangladesh. The defendant made his torture claim in 2007 in
I I
Hong Kong and his application for asylum is still pending. The defendant
J is therefore not allowed to work in Hong Kong. Although he is receiving J
assistance from International Social Service of Hong Kong (“ISS”) in the
K K
form of a $1,200 rent subsidy as well as free food, the defendant’s actual
L L
rental payment is $1,700. Financial hardship is the reason why the
M
defendant committed the present offences. He was promised $500 by a M
person known as ‘Shahadit Hussein’ to keep the drugs and the weapons.
N N
O 8. Those representing the defendant had written to ISS to find O
out more about the defendant and was informed that he had attempted to
P P
commit suicide in 2011 when he was hospitalized for 2 months as a result.
Q Q
Different drugs being trafficked
R R
S 9. Given that the drugs that the defendant trafficked in contained S
both Ice and Ketamine, Mr. Omar submits that the court should apply the
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 4 -
A A
B ‘conversion test’ as approved by the Court of Appeal in the case of HKSAR B
v Chan Yuk Leong, CACC 318/2013.
C C
D 10. In Chan Yuk Leong, the trafficking involved different D
quantities of Ice, Cocaine and Ketamine, the Court of Appeal was asked to
E E
cross-check by way of the application of three tests to see if the sentence
F imposed by the trial judge was manifestly excessive. F
G G
11. The Absurdity Test is to take the whole quantity of drugs
H seized and assume they all contained the most serious drug, i.e. Ice in that H
case, and compare the starting point with the actual starting point taken.
I I
J 12. The Conversion Test is to take the amount of drug considered J
to be at the lower end of toxicity, ketamine in that case, apply the
K K
appropriate sentencing guidelines (Secretary for Justice v Hii Siew Cheng
L L
[2009] 1 HKLRD 1 for ketamine) and arrive at a starting point. The court
M
would then take that starting point and find the equivalent quantity of the M
more serious drug, i.e. Ice in that case, that would have led to the same
N N
starting point. That quantity of Ice would then be added to the original
O quantity of Ice and the guideline sentence for Ice is applied to come up O
with the adjusted starting point.
P P
Q 13. The Ratio Test is to take the percentage ratio of each of the Q
different kind of drugs and apply that ratio to the sentence that would have
R R
been if all the drugs were the same kind and come up with an individually
S adjusted sentence. The final sentence would be the total of the 3 adjusted S
sentences.
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 5 -
A A
B Sentencing tariffs B
C C
14. It is not disputed that the range of sentence for trafficking up
D to 10g of Ice is that of 3 to 7 years’ imprisonment; and that for up to 10g of D
ketamine is that of 2 to 4 years’ imprisonment.
E E
F Sentence F
G G
15. The maximum sentence for charges 1 and 2 respectively is
H that of 3 years’ and life imprisonment. H
I I
16. Although I do sympathize with the defendant’s plight as a
J torture claimant in Hong Kong, given the gravity of the trafficking offence, J
his personal circumstances do not amount to very strong mitigating factors.
K K
L
17. I find the ‘conversion test’ approach reasonable and useful L
M
and will adopt this approach in relation to charge 2. M
N N
18. For 5.14g of ketamine, I would take a starting point of 3
O years’ imprisonment. Anything around 1g of Ice would have attracted an O
equivalent 3 year starting point and I will take the conversion to be 1g of
P P
Ice. The total amount of Ice is therefore 10.11g.
Q Q
19. For 10.11g of Ice, applying the guideline sentence in Attorney
R R
General v Ching Kwok Hung [1991] 2 HKLR 125, I will adopt a starting
S point of 7 years’ imprisonment in relation to charge 2. The defendant S
pleaded guilty and is entitled to the usual one-third discount. He is
T T
therefore sentenced on charge 2 to 56 months’ imprisonment.
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V
- 6 -
A A
B B
20. In relation to charge 1, the offensive weapon charge, given
C C
that there are 5 beef knives each of 44cm in length and given the inevitably
D sinister intention behind the person asking the defendant to keep the knives D
for him, which the defendant must have known or inferred, I find that a
E E
proper starting point is that of 12 months’ imprisonment, which is
F discounted to 8 months’ imprisonment in recognition of the defendant’s F
guilty plea.
G G
H Totality H
I I
21. Bearing in mind the personal circumstances of the defendant,
J yet also bearing in mind the different nature of the offences and the fact J
that the offences were not committed in the course of a single transaction,
K K
having taken a step back to consider, I find that 4 months of the sentence in
L L
charge 1 should be served consecutively to the sentence in charge 2, the
M
balance concurrently. The defendant is therefore sentenced to a total of 60 M
months’ imprisonment for the 2 charges.
N N
O O
P P
(Douglas T.H. Yau)
District Judge
Q Q
R R
S S
T T
U U
CRT21/7.11.2014 DCCC437/2014/Reasons for Sentence
V V