HKSAR v. Baljeet Singh

HCCC 373/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 373 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Mr Baljeet Singh, pleads guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant on the 13th day of January 2015 at Mong Kok, Kowloon in Hong Kong, unlawfully trafficked in dangerous drugs, namely 271.1 grammes of a powder containing 161 grammes of ketamine, 984.2 grammes of a crystalline solid containing 973.5 grammes of methamphetamine hydrochloride, and 11.3 grammes of a mixture containing 8.42 grammes of heroin hydrochloride.

Facts admitted

On 13 January 2015 at about 6.25 pm, using the key in the possession of the defendant, police officers entered and searched the living place of the defendant at Room D, Flat C, 6th Floor, 738-740 Nathan Road, Mong Kok, Kowloon. On a desk and a plastic chair inside Room D, police officers found, respectively, 14 and 65 resealable transparent plastic bags containing a total of 271.1 grammes of a powder containing 161 grammes of ketamine, 984.2 grammes of a crystalline solid containing 973.5 grammes of methamphetamine hydrochloride, and 11.3 grammes of a mixture containing 8.42 grammes of heroin hydrochloride.

On the same desk, police officers also found a pair of scissors, two rolls of tapes, two lighters, a spoon, 50 empty resealable transparent plastic bags, an electronic scale, and a piece of paper with something written on it. The defendant was arrested for trafficking in dangerous drugs. On the person of the defendant, police officers found two mobile telephones, cash HK$26,110, and Renminbi 10.50.

In a video-recorded interview subsequently conducted, the defendant stated that he relied on social assistance for his living.

In January 2015, the estimated street value of the ketamine involved was HK$34,159, that of methamphetamine hydrochloride was HK$418,285, and that of heroin was HK$8,486.

Criminal record

The defendant has two previous convictions, the last one being failing to surrender to custody as appointed without reasonable cause and was sentenced to 4 weeks’ imprisonment on 11 June 2015.

Mitigation

The defendant was born in India where he was educated up to secondary six. He came to Hong Kong in 2013 after leaving school to seek political asylum because he was threatened by a political group which was rival to the political group he had joined in India. He is now living on the assistance of the Hong Kong Government for his food and lodging.

According to counsel for the defendant, the defendant committed the present case under the influence of a female Indian friend by the name of Kim. Kim had provided methamphetamine hydrochloride, commonly called ‘Ice’, of about 1 gramme per day to the defendant free of charge, and the defendant was under the impression that he owed Kim a lot.

A few days before arrest, Kim asked the defendant to deliver dangerous drugs for her for a reward of $50,000. Acting on the instructions of Kim, the defendant took a plastic box containing the dangerous drugs in the present case home to wait for the buyer to telephone him and to come to his place to collect the dangerous drugs. He was arrested by the police when he took the box of dangerous drugs home.

Counsel for the defendant emphasises that the defendant was cooperative with police and feels sorry for offending the law because the Hong Kong Government had provided financial assistance to him. The defendant has not received the reward of $50,000 and has now quitted the habit of abusing dangerous drugs.

Counsel for the defendant adds that Kim had told the defendant that he could take 8 to 9 grammes of the ‘Ice’ from the box of the dangerous drugs for his own consumption. Counsel urges the court to adopt the composite approach in the sentencing of the present case for the different types of dangerous drugs. He asks the court to be lenient to the defendant.

Sentence

The present involves three types of dangerous drugs. In the case of HKSAR v Ip Wai Yin, it was said that the court can adopt an individual approach or a combined approach in sentencing. The court is of the view that in the present case the combined approach is more appropriate and fair. By this approach the court first determines the appropriate starting point for the more potent drugs, and then adjust the starting point upwards, taking into account the quantity and nature of the rest of the dangerous drugs.

In the present case, the ‘Ice’ is obviously the most potent dangerous drug among the three. According to HKSAR v Tam Yi Chun CACC 524/2011, trafficking in a quantity of more than 600 grammes of ‘Ice’, the sentencing tariffs are the same as those for trafficking in heroin hydrochloride as laid down in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. For a quantity of 600 to 1,200 grammes of ‘Ice’, the starting point is 20 to 23 years’ imprisonment. The starting point for trafficking the 973.5 grammes of ‘Ice’ alone in the present case is approximately 21 years and 10 months’ imprisonment.

The question is how much the starting point is to be enhanced to reflect that there are also two other types of dangerous drugs involved.

In the case of HKSAR v Chan Yuk Leong CACC 318/2013, the Court of Appeal reviewed the three methods used in determining the levels of enhancement in various cases. These methods are known as the absurdity, conversion, and ratio tests. By “conversion test”, the less potent drugs are converted into the equivalent quantity of the potent drugs and the starting point is determined in accordance with the total amount of potent drugs that are reached.

The court is of the view that in the present case, a fair and just result can be achieved by adopting this method. According to the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the starting point for trafficking in 50 to 300 grammes of ketamine is 6 to 9 years’ imprisonment. There are 161 grammes of ketamine involved in the present case and the starting point is approximately 7 years and 4 months’ imprisonment, which is equivalent to about 15 grammes of ‘Ice’.

According to R v Lau Tak Ming & Ors [1990] 2 HKLR 370, the starting point for trafficking up to 10 grammes of heroin hydrochloride, the starting point is 2 to 5 years’ imprisonment. The amount of heroin hydrochloride involved in the present case is 8.42 grammes, and the starting point is approximately 4 years and 6 months’ imprisonment which is equivalent to 3.75 grammes of ‘Ice’.

After the conversion, the total amount of ‘Ice’ in the present case becomes 992.25 grammes which will bring about a starting point of little bit more than 21 years and 11 months’ imprisonment.

According to the defence counsel, 8 to 9 grammes of the ‘Ice’ were for the defendant as a reward for his delivery of the dangerous drugs. Even treating this 8 to 9 grammes of ‘Ice’ as for the defendant’s own consumption, the starting point will still be about 21 years and 10 months’ imprisonment. This amount of ‘Ice’ was a reward to encourage the defendant to traffic in dangerous drugs and, as such, will only give rise to a minimal discount.

The court is of the view that 21 years and 11 months’ imprisonment is an appropriate starting point for the present case, and is so adopted.

Giving credit for the defendant for his plea of guilty, the court sentences him to 14 years and 7 months’ imprisonment.