HKSAR v. Singh Sarbjit

DCCC 1182/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1182 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drug involved is 19.90 grammes of a solid containing 10.70 grammes of cocaine.

Summary of facts

2.On 11 October 2016 police officers found the defendant acting furtively as he was walking towards the exit of the MTR Tin Shui Wai Station, West Rail Line, Tin Shui Wai, New Territories.  The defendant was taken into the toilet for the disabled in the MTR station for a body search.  Upon search, the police found in the crotch area of the trousers of the defendant a cigarette box containing a transparent resealable plastic bag containing 19.90 grammes of a solid containing 10.70 grammes of cocaine.

3.Under caution at scene, the defendant said the cocaine was for his own consumption and the purchase price was HK$10,000.  He said he would consume the dangerous drug within 2 to 3 days.

4.The street value of the cocaine involved was estimated to be HK$22,546.00.

Mitigation

5.The defendant is locally born and is now 24 years of age.  He is single and received education up to Secondary 3 level.  He used to work as a construction site worker and transportation worker earning around HK$16,000 per month.  However at the time of his arrest he had been unemployed for about a month.  He has one previous conviction but it is not drug-related.  He lives with his mother and a younger sister. 

6.In mitigation, defence counsel submitted that the defendant is remorseful and he pleaded guilty at the first available opportunity.  She asked the court to give the defendant a full one-third discount.  Defence also submitted it is the defendant’s case that part of the drug was for his own consumption.  The defendant told the police under cautioned that the drug was for his own consumption and he repeated the same in the subsequent video record of interview.  Defence said the defendant’s version is not unreasonable as he had been in gainful employment all along and could afford to purchase the drug for his own use.  In conclusion, defence counsel urged the court to impose a lenient sentence.

Sentence

7.There is no doubt that “drug trafficking” is one of the most serious offences. Any person who commits this offence should be under no illusion that the court will deal with him/her leniently and long-term imprisonment is to be expected even for fresh offenders.  For trafficking cocaine, the Court of Appeal held in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that the tariffs for trafficking heroin in The Queen v Lau Tak Ming & others [1990] 2 HKLR 370 should apply to trafficking in cocaine.  For 10 to 50 grammes of heroin hydrochloride, the sentence should be imprisonment of 5 to 8 years.

8.Concerning the self-consumption issue, according to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the court should give a discount of 10% to 25% in sentence if the court is satisfied that all or part of the drugs are intended for the trafficker’s own consumption. 

9.In the present case, the only evidence to show that the defendant is a drug user comes from his own admissions, under cautioned at scene and in the video record of interview.  However, in the video record of interview, when the officer asked the defendant that since he was unemployed and had no money with him, how could he afford to purchase the drug at HK$10,000, the defendant answered “I don’t want to actually tell this”.  If part of the drug was really for his own consumption, the defendant could easily answer that he purchased the drug with his savings from previous employment.  The failure to answer the question properly only shows that the defendant was not telling the whole truth.  After careful consideration of all the circumstances of the case, I am not satisfied that all or part of the drug was for the defendant’s own consumption.

10.The defendant trafficked in 10.70 grammes of cocaine in the present case.  Considered all the circumstances including his personal background and the fact that this is his first ever drug-related conviction, I consider the appropriate starting point should be 5 years ie 60 months.  There is no other mitigating factor other than the guilty plea.  Accordingly, after giving one-third for the guilty plea, the defendant is sentenced to 40 months’ imprisonment.