HKSAR v. Don Amarasinghalage Don Chandra Janaka

HCCC 289/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 289 OF 2016

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

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COURT:

The defendant has pleaded guilty to one count of trafficking in a dangerous drug.

Summary of Facts reveals the following.

On the material day, a neighbour of the defendant was intercepted by a team of police officers on the ground floor of a building where the neighbour was leaving his house in Hung Hom, Kowloon. The neighbour was then taken up by police officers to his house on the rooftop of the building for a search. Inside one of the rooms, a room in fact occupied by the defendant and one Filipina lady, police officers seized, among other drugs, 25.91 grammes of ‘Ice’.

The street value of the ‘Ice’ was estimated to be HK$11,000.

The defendant admitted that he was trafficking in those ‘Ice’.

The defendant came to Hong Kong after allegedly fleeing Sri Lanka due to threats made to his safety in 2002. He is currently a recognisance holder waiting for his claim to be assessed. He receives $1,500 government aids each month. Prior to this incident, he has no conviction record relating to drugs.

In mitigation, it was submitted on the defendant’s behalf that part of the ‘Ice’ seized, ie, 6 to 7 grammes, was for his own consumption. Mr McGowan asked this court to take that into account in sentencing.

Assuming all the ‘Ice’ seized that morning was for the purpose of trafficking, the starting point for that would be one of 8 years’ imprisonment, ie, 96 months. Assuming 20 grammes of the ‘Ice’ was for the purpose of trafficking, the starting point for that amount would be one of 7 years and 8 months, ie, 92 months. Given the fact that possession of a dangerous drug itself is also a criminal offence, that means the proper starting point in this case would be somewhere between the two figures and, in any event, the difference in this case is really very small.

Given the fact that this is a re-trial, I think the appropriate starting point in this case is the same as the sentence given to the defendant in his original trial, ie, 7 years and 9 months. That would be 93 months.

The defendant only entered his plea this morning. As such, the defendant will be given, instead of the usual one-third discount, a quarter discount only. This will effectively reduce his sentence to one of 69 months’ imprisonment.

During the search of his room, police officers also found a small quantity of ketamine and cocaine. For that, the defendant was convicted of possession of dangerous drugs and sentenced to 3 months’ imprisonment. Had he been charged with trafficking in those other dangerous drugs, with the ‘Ice’ in the present case, it is highly likely that he would be ordered to serve the same sentence, ie, 69 months’ imprisonment.

Since the defendant had already served that 3 months’ imprisonment, I believe it is therefore just to reduce the present 69 months’ imprisonment into one of 66 months’ imprisonment in order to reflect the overall criminality, and fairness to the defendant in this case.

In conclusion, the defendant is sentenced to 66 months’ imprisonment for the offence he has pleaded guilty of today.

(Discussion on discount of sentence)

When I say the defendant entered his plea today, of course, technically, he entered his plea today. I note what you have said but in my view, because this is a re-trial, therefore, a quarter is the norm and I therefore sentence the defendant according to the normal practice.