HKSAR v. Hari Krishan

DCCC 77/2019

[2019] HKDC 902

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 77 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to a charge of trafficking in dangerous drugs, namely 12.83 kilogrammes of cannabis resin. Full particulars of the offence are set out in the facts admitted by the defendant today.

Admitted Facts

2.At the morning hours on 24 September 2018, the defendant arrived at Hong Kong International Airport from India.  At 0941 hours, CO98365 intercepted the defendant at Customs Arrival Hall B and a customs check was performed on the defendant and his belongings.  Upon performing an x-ray scan on the defendant’s suitcase, CO15172 led the defendant to the baggage inspection counter for a detailed inspection of the defendant’s personal belongings.

3.At 0945 hours CO15172 asked whether the suitcase belonged to the defendant and he answered yes.  CO15172 asked the defendant to open the suitcase.  The defendant took out the key to unlock the suitcase lock and he also unlocked the password lock.  CO15172 first spotted some personal belongings in the suitcase.  However, CO15172 removed the items in the suitcase and realised that the suitcase was unreasonably heavy.

4.CO15172 then took the suitcase and passed it to CO16124 for a further x-ray scan, which revealed suspected false compartments.  In the presence of the defendant, CO16124 performed a further search of the suitcase at the baggage inspection counter.  CO16124 found a false compartment in the suitcase, which contained a black plastic bag containing a brown package containing suspected cannabis.

5.As such, CO16124 arrested the defendant for contravening the Dangerous Drugs Ordinance.  Under verbal caution, the defendant stated “I understand.  I don’t know what it is, my friend asked me to bring the suitcase to someone in Sheung Shui”.  The defendant then gave CO16124 the contact details of his friend.

6.Records confirmed that the defendant flew from Delhi into Hong Kong and that the immigration record of the defendant showed that he entered Hong Kong at 0920 hours on the offence date.

7.HO Siu Hong, Government Chemist, examined and certified the seized drugs, being 1 packet containing 6.14 kg of cannabis resin and 1 packet containing 6.69 kg of cannabis resin.  A total of 12.83 kg of cannabis resin were seized in this case.

8.The estimated street value of the seized drugs is HK$923,760.  At all material times, the defendant possessed the seized drugs for unlawful trafficking.

Mitigation

9.The defendant is now 50 years old.  In mitigation, Mr Whitehouse mentioned the defendant is suffering from ventricular septal defect, which he said by way of google search means a hole in the heart defect that’s present at birth.  Mr Whitehouse fairly accepted that it is a pre-existing condition and the defendant’s current physical condition might not justify a reduction of sentence.  But that explained how the defendant was involved in this case as he needed money for surgical operation.  There is no complaint that the defendant was not treated well or he is in a critical condition.  Mr Whitehouse also addressed me on how to look at “international element” and the court should avoid double counting on “importing drugs” and “international element”.  After discussion, both the prosecution and Mr Whitehouse fairly accepted that the starting point of 5 years adopted in two Court of Appeal cases mentioned hereunder has included “the international element”.  In passing sentence, I have carefully considered the written and oral submissions of Mr Whitehouse, including the legal authorities which suggest the band of sentence of around 4 years involving trafficking of more than 9 kilogrammes of cannabis resin.  I was reminded to take into account the defendant’s clear record and his early guilty plea.  

Guidelines

10.In Attorney General v Chan Chi Man[1]the starting point after trial for trafficking in cannabis resin of under 9,000 grammes is up to 4 years’ imprisonment.  The potency of herbal cannabis is 4 times less, and the potency of cannabis oil is 4 times greater than cannabis resin.  Tariffs must be adjusted accordingly for herbal cannabis or cannabis resin: Attorney General v Tuen Shui Ming and Anor[2].  

Starting point

11.According to the admitted facts, there is an international element that may result in the increase of sentence, especially the defendant in this case brought large quantity of cannabis resin into Hong Kong.[3] That justifies the increase of 3 months’ imprisonment.[4]  In Masoom case, the defendant was sentenced with a starting point of 4 years and 6 months’ imprisonment for trafficking of 11.94 kg of cannabis resin with an addition of 3 months for international element.  

12.There are other decided cases with similar quantity of cannabis resin where the Court of Appeal suggested 5 years’ imprisonment as the starting point for trafficking of 13 kg of cannabis resin (presumably including international element).[5]  In HKSAR v Gurung Surai CACC 225/2014, the Court of Appeal affirmed the starting point of 5 years’ imprisonment for trafficking of 15.2 kg of cannabis resin.  In a recent District Court case involving trafficking of 14.612 kg of cannabis resin, the defendant was sentenced with a starting point of 4 years and 9 months’ imprisonment with an addition of 3 months for international element.[6]

13.Based on similar comparable, I would adopt a starting point of 4 years and 8 months for trafficking of 12.83 kg of cannabis resin, in addition to 3 months’ enhanced sentence for international element.  That arrives at a starting point of 59 months.  After giving one third discount for his early guilty plea, the total sentence to be served by the defendant is 39 months’ imprisonment or 3 years and 3 months’ imprisonment (round down figure).