Case Document

100%Judiciary

DCCC 294/2017

[2018] HKDC 473

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 294 OF 2017

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	HKSAR
	v
(D1)	RAI Sumdi Bung
(D2)	GURUNG SANTA BAHADUR
(D3)	GURUNG Govind

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Before:

HH Judge E. Yip

Date:

22^nd February 2018 at 11:28 am

Present:	Ms Diane CREBBIN, Counsel on Fiat, for HKSAR
	Mr GROUNDS Christopher Malcolm, instructed by M/s S.H. Chan & Co assignedby DLA for D2
	Mr BULLETT Andrew Humphrey, instructed by M/s Tse Yuen Ting Wong assigned by DLA for D3

Offence:

[1] Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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Charge and pleas

1.D1, D2 and D3 are charged with trafficking in a dangerous drug, namely 9,424 grams of cannabis resin.

2.D2 pleads guilty before trial. D1 and D3 plead not guilty and stand trial. Trial commenced on 4/9/2017. After the prosecution case is closed, D1 calls D2 as her witness. After D2 has completed his evidence, D3 gives evidence. In the course of cross-examination by the prosecutor on 13/10/2017, the 7^th day into the trial, D3 pleads guilty to the charge. At the end of the trial of D1 on 13/10/2017, D1 is acquitted of the charge.

Facts of the case

3.D1 worked as a waitress in Hong Kong. D2 was an asylum seeker from Nepal who held a Form 8 Recognizance. They became lovers after they met in Hong Kong. D3 was a construction site worker in Hong Kong. D2 and D3 came to know one another due to their dealings in cannabis in Hong Kong. D1 did not know D3 at all.

4.The present case stemmed from a parcel described as “rubber slippers” (but actually being cannabis resin with a net weight of 9,424 grams) consigned to D1’s name and address from a consignor in India. It was examined by the Customs & Excise Department (“C & E”) upon its arrival at the Hong Kong International Airport on 28 October 2016. On 29 October 2016, a controlled delivery was conducted by C & E. When the parcel was delivered to D1 at her address, C & E officers arrested D1 and then D2, who was also in the premises and making a phone call. D2 explained to the C & E officers that it was a parcel arranged by D3 upon his (D2’s) successful persuasion of D1 to be its consignee at her address, D1 was told it contained no contrabands, and he (D2) was on the point of telling D3 that the parcel had arrived so that D3 could come up to take delivery of it. In the presence of C & E officers, D2 proceeded to contact D3 for his collection. Shortly afterwards, D3 arrived at the address and was arrested by C & E officers.

5.In the subsequent enquiry under caution D1 denied knowledge of the contents of the parcel. She had let D2 use her name (as D2 told her the consignee had to have a Hong Kong identity card) and address to receive the parcel.

6.In the subsequent enquiry under caution D2 stated that he only helped his friend D3 to receive the parcel. D3 told him the need for a Hong Kong identity card, so D1’s name was used.

7.In court D2 and D3 both agree to the Summary of Facts which referred to D2’s being used as a front to receive the parcel containing the cannabis resin.

Sentencing guidelines

8.In the absence of aggravating factors, trafficking of cannabis resin of over 9,000 grams shall attract at least 4 years’ imprisonment (A.G. v Tuen Shui Ming & Another [1995] HKC 2).

Mitigation

9.D2 is 28 years old, a Nepali national. He has a clear record. In 2014, he came to Hong Kong as a tourist and sought asylum, then remained in Hong Kong as a Form 8 recognizance holder. He lived on subsistence allowance from International Social Service Hong Kong. His parents and young brother are in Nepal. His sister is in Hong Kong. D1 was his girlfriend. They had planned to marry before but now D1 does not even talk to him. She felt very much aggrieved for being ill-used by him, resulting in being charged and detained for nearly a year.

10.There are two aggravating factors in D2’s sentence. First, he was a Form 8 recognisance holder. Mr. Grounds refers me to the case of HKSAR Shah Syed Arif CACC 298/2015 as an example of the extent of aggravation in sentence. The applicant there was sentenced to 10 years for trafficking in 55.88 grams of cocaine. The sentencing judge adopted a starting point of 8 years 2 months, to be aggravated by 1 year 10 months for his Form 8 recognisance holder status. The Court of Appeal revised it to 1 year. The final sentence was reduced to 9 years 2 months.

11.Secondly, there was an international element in importing the drug from India. In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal holds that the sentence for trafficking in heroin involving an international element should be enhanced by at least 2 years for drugs above 1,000 grams. There are numerous cases concerning heroin, cocaine, or Ice which applied such enhancement by pro rata. The sentencing guidelines for cannabis resin are about 3% for that of heroin, cocaine, or Ice. By reckoning, it is 22 days’ enhancement for cannabis resin of 1,000 grams. Mr. Grounds suggests not more than 3 months for our present case.

12.Mr. Grounds addresses me on two mitigating factors. First, D2 had rendered valuable assistance for the arrest of D3 when he called D3 to come to collect the parcel. D2 could have refused to do anything. Secondly, D2 had given evidence in court in the same terms of his Non-Prejudicial Statement, which inculpated D3. It is apparent that D3’s plea of guilty was prompted by D2’s evidence in court. The prosecution has elected not to call D2 as a witness for the apparent reason that, while D2’s evidence will inculpate D3 on the one hand, the same evidence will also exculpate D1 on the other hand. Mr. Grounds asks me to give D2 the same discount for his de facto role as a prosecution witness.

13.D3 is 31 years old. He was born in Nepal but emigrated to Hong Kong in 2006. He is single. His parents, 2 younger brothers are in Hong Kong and each have a full-time job. He had 3 records but none of drug trafficking. I order a Background Report on D3 to be due on 24/11/2017, the return date for further mitigation and sentence.

14.In para. 6 of the Background Report D3 claims that:

[H]e had ordered 500 grams from D2 only and never intended to buy all the 9,424 grams as he could not afford it. He bought cannabis from D2 several times and D2 promised to give him a discounted price if he bought more. Hence, he planned to buy 500 grams for both self-consumption and selling to his friends. On one hand, in view of his plan for selling cannabis to his friends, [D3] entered a plea of guilty for trafficking. On the other hand, he blamed D2 for setting this up for him.

15.On 24/11/2017, D3’s counsel Mr. Percy informs me that this will remain D3’s stance in mitigation. I tell Mr. Percy that this stance is plain inconsistent with the Particulars of the Charge, which refers to 9,424 grams of cannabis resin, the subject-matter of D3’s plea of guilty. After taking time for instructions, Mr. Percy informs me that D3 still maintains the plea of guilty in respect of 500 grams only. I adjourn the case to 13/12/2017 for Mr. Percy to take full instructions and consider whether to apply to withdraw D3’s plea of guilty. On 13/12/2017, the matter was further adjourned to 2/2/2018 as the application appeared to require one whole day and my court was in the middle of a multiple day trial. The hearing was fixed for 2/2/2018. On 2/2/2018, D3 is represented by Mr. Bullett in place of Mr. Percy.

16.Mr. Bullett refers me to the case of HKSAR v Kayani [2005] HKEC 896. The applicant and D2 there were convicted of conspiracy to traffic in a dangerous drug. The quantity of heroin was not particularized in the charge. As the evidence goes, whilst D2 and other co-conspirators were contemplating a supply of 3 kg of heroin from China to Hong Kong, the applicant was not aware of the quantity except that it would be substantial. Instead of sentencing the applicant for the bulk of 3 kg, the Court of Appeal reduced the starting point to that relating to 200 – 400 grams. I do not find Kayani relevant to our present case. In our present case D3 has pleaded guilty to the precise quantity of 9,424 grams as particularized in the charge. It is not open to D3 to mitigate on the basis that this was not the quantity in his contemplation.

Sentencing D2 and D3

17.I believe D2’s evidence in court to the effect that D3 had promised to pay a reward to him for providing a name and an address to receive the parcel of cannabis resin.

18.I consider 4 years as the basic starting point for D3. I add 3 months on as there was an international element. He had engaged D2 for a reward as a front to receive the parcel. It is possible that he might have a financier or boss behind him. But vis-à-vis D2, he was more culpable and higher in the hierarchy for the arrangement of the shipment. I add another 3 months on. The actual starting point is 4 years 6 months ie 54 months. For his late plea of guilty, I reduce his sentence by 8 months. His eventual sentence is 3 years 10 months ie 46 months.

19.I consider 4 years as the basic starting point for D2. I add 3 months on as there was an international element. I add another 3 months on due to his Form 8 recognisance holder status. The actual starting point is 4 years 6 months ie 54 months. For his timely guilty plea, I give him a 1/3 discount ie 18 months. For his assistance to the C & E to call D3 up to collect the parcel, I give him a discount of 2 months. His evidence has apparently prompted D3 to plead guilty. I give him a discount of another 6 months. His sentence is 2 years 4 months ie 28 months.