HKSAR v. Jaswinder Singh

HCCC 302/2018

[2019] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 302 OF 2018

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

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COURT:

Jaswinder Singh, on 24 September 2018, at a time when you were legally represented, you entered a plea of not guilty and were committed to this court for trial. That was consistent with your answer on arrest, that you did not know the contents of the paper bag.

On 26 October 2018, you indicated that you intended to plead guilty to the one count of trafficking in dangerous drugs which you faced. You have today pleaded guilty to one count of trafficking in 813 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. In so doing, you have accepted that you were apprehended by the police on 25 April 2018, at which time you had a brown paper bag in your possession. When the police approached you, you dropped the bag and ran away but were caught and found to have two mobile phones upon you and $600 in cash. The brown paper bag was found to contain the 813 grammes of cocaine.

Initially, you denied knowledge of the contents of the bag and you remained silent under interview, which is your right. Since then, you have had a change of heart and decided to plead guilty to this offence.

The estimated street value of the cocaine was $939,060.

You are 32 years of age and an Indian national and a Form 8 holder. You have a criminal record in Hong Kong but that matter is not similar to the charge you face today although I note that you were only released from prison for that matter in December 2017 and that this offence was committed just four months later. That is an aggravating feature, especially as you are a Form 8 holder.

Mr Yuen on your behalf, in his written submissions, tells me that you come from a humble home in India; have no similar convictions and were to be rewarded with only HK$1,000 for carrying drugs of considerable value. I have difficulty believing that someone would trust you with almost a million dollars’ worth of drugs on a first-time basis but you are to be sentenced for this count and this count alone.

I have read and taken into account what Mr Yuen has said on your behalf, but in matters as serious as this, there is very little mitigation which can assist and there are aggravating features.

The guideline case for trafficking in between 600 to 1,200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437 and the range of sentence is between 20 and 23 years after trial. For 813 grammes of cocaine, the starting point after trial is therefore 21 years.

There is also the aggravating feature, as I have said, that you are a Form 8 holder. You are accepted by the government of Hong Kong and provided with both shelter and food whilst you progress your refugee claim. You have abused the trust that we placed in you not once but twice. You committed this offence just four months after being released from prison. I have considered HKSAR v Ali Saif, CACC 309/2017, [2018] HKCA 358 and the authorities referred to therein, and I note that the range of sentencing the Court of Appeal has considered appropriate in the cases referred to, were between 6 and 18 months’ enhancement.

For the offence you face today, I intend to enhance your sentence by 12 months to reflect that breach of trust. That makes 22 years’ imprisonment.

You knew you were guilty of this offence at the time of committal. You were legally represented and therefore would have been fully aware at that time of the discount available to you for pleading guilty at the first opportunity, but you did not do so.

Mr Yuen asks that you receive a full one-third discount from the sentence this court must pass because you indicated a plea of guilty just a month after committal. He urges the court to consider the fact that a plea offered soon after committal would have saved prosecution costs in preparation for trial. I am not convinced that in this case it saved any prosecution costs as this was an open-and-shut case. You were caught red-handed with the drugs. It did save court time, however, and for that you can avail yourself of a 25 per cent discount but you and those in your position must understand that if you wish to obtain the full discount, then you must plead at committal.

The guidelines on discount outlined in HKSAR v Ngo Van Nam, CACC 418 of 2014 are clear. I am therefore only prepared to give you the 25 per cent discount suggested in Ngo Van Nam for a plea indicated in prior to listing.

Mr Singh, you will go to prison for 16 years and 6 months.