HKSAR v. Ravinderjit Singh

HCCC 119/2019

[2019] HKCFI 2522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 119 OF 2019

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

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COURT:

The defendant had pleaded not guilty to one charge of trafficking in dangerous drugs. He pleaded not guilty in Eastern Magistracy and was committed to the Court of First Instance for trial on 8 April 2019. His trial was set down for six days from 23 September. There was an indication of plea on the first day of trial before arraignment. The defendant pleaded guilty today on 25 September after a short adjournment.

The charge is that on 28 June 2018, outside On Ming Building, Hop Yick Road, Yuen Long, the defendant unlawfully trafficked in 1.19 kilogrammes of a crystalline solid containing 942 grammes of methamphetamine hydrochloride, ‘Ice’.

The facts are straightforward. At about 6.20 pm on 27 June 2018, an inbound TNT parcel originating from Rwanda was selected by Customs and Excise officers for examination at the Hong Kong International Airport. The parcel declared the contents to be auto-car side mirrors. The consignee was a Delax Williams with an address at Flat G, 2nd Floor, On Ming Building, YLT 171, 87-91 Hop Yick Road, Yuen Long, Hong Kong.

Upon inspection, customs officers found the 1.19 kilogrammes of a crystalline solid concealed inside five side mirrors in the parcel. A controlled delivery operation was arranged for the following day and customs officers disguised themselves as TNT courier officers in order to deliver the parcel to the consignee’s address. However, they found the address to be inaccurate or incomplete. A customs officer phoned the consignee’s contact number and spoke to an English-speaking man who said he would take delivery of the parcel. It was arranged for this man to meet the customs officer on the ground floor of the consignee’s address.

Not long after this arrangement, the defendant approached the undercover customs officers. He presented a copy of a passport bearing the name of the consignee. He claimed to be a friend of the consignee’s and would take delivery on his behalf. Upon collection of the parcel, the customs officers revealed their identities and arrested the defendant. Under caution, the defendant indicated he did not speak or understand English.

There was a video-recorded interview conducted the following day with the assistance of a Punjabi interpreter and under caution, the defendant exercised his right to remain silent. When the customs officers searched the defendant, they found a notification of parcel collection from the post office issued to a John Musa Malik and a copy of a passport in that name.

On 29 June 2018, customs officers went to Kam Tin Post Office with that notification of parcel collection document and retrieved a parcel. When it was examined, they found eight bags of heroin concealed in four handbags.

The retail value of those drugs at the material time was estimated to be $853,128. The estimated street value of the ‘Ice’ of this charge found in the vehicle side mirrors at the material time was $631,890.

The consulate general of India in Hong Kong verified the passport copies in the name of Williams and Malik were both false. They were copies of a genuine passport but issued to other Indian nationals. The defendant was not charged with attempting to traffic the drugs in the post office parcel.

I have been informed that the prosecution had to wait for a long time for confirmation from the consulate general of India and in fact only received written confirmation of the false passport copies a couple of days before trial. It would appear that the defence were only recently made aware of the fact that the prosecution were intending to produce evidence of false passport copies and the post office notification document leading to the discovery of the heroin.

In mitigation, I have heard the defendant is a Form 8 recognisance holder and 36 years old. He is not highly educated. He is married and his wife and three children live in India.

The defendant is not a man with a clear record in Hong Kong. He was sentenced to a suspended sentence for shoplifting in May 2017. It is not a record relating to dangerous drugs. I have been told that he came to Hong Kong in 2014. He has been used or targeted by others to act as a drug mule.

Mr Richmond has said all he can say on behalf of the defendant in mitigation. He recognizes his best mitigation is his plea. It is his only mitigation.

Sentencing Guidelines

The sentencing guidelines in ‘Ice’ can be found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, but in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the Court of Appeal set out further guidelines for cases involving larger quantities of narcotics. It was held that for cases involving narcotic content of 600 to 1,200 grammes, an imprisonment term of 20 to 23 years’ imprisonment should be considered. In this case, mathematically speaking, the ‘Ice’ involved should attract a starting point of 21 years and 9 months.

It is well-established that the sentencing starting point for the offence of trafficking in the absence of any good reasons to the contrary is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach. The mere fact that the defendant was the drug mule and clearly not the mastermind is not a good reason for departing from that mathematical approach. I have referred myself to HKSAR v Kilima Abubakar Abbas [2018] HKCA 602. Therefore, I will take a starting point of 21 years and 9 months for trafficking in this quantity of ‘Ice’.

There is an aggravating factor and, that is, the defendant is a non-refoulement protection claimant convicted of trafficking drugs. The Court of Appeal has endorsed an enhancement of sentence for this serious breach of trust and privilege by a person not normally entitled to be in Hong Kong, someone like the defendant who is here on the strength of a Form 8. This crime not only affects the community at large but has an obvious impact on Hong Kong’s reputation. It was not committed by a Hong Kong resident but by a person not normally entitled to be here and is only permitted to remain at liberty within the Hong Kong community whilst his claim is being processed. I have referred myself to the authorities of HKSAR v Ali Saif CACC 309/2017 as well as HKSAR v Londono Montealegre [2017] 1 HKLRD 450. Those authorities endorse that enhancement.

Having considered the facts of this case, I find an enhancement of 6 months to be appropriate for this aggravating factor. I will take a starting point of 21 years and 9 months and enhance it by 6 months to reflect that factor.

There is a second aggravating factor. These drugs come from abroad, posted in Rwanda to Hong Kong. It is well‑established that where an international element arises from the facts of a trafficking-in-dangerous-drugs offence, then this element constitutes an aggravating factor. I have referred myself to HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 6 HKC 106. These guidelines are not a straightjacket and I enhance the starting point by 1 year to reflect this factor.

After those enhancements are applied, the starting point becomes one of 23 years and 3 months.

Discount

The defendant is not automatically entitled to a full discount because he did not plead guilty at the earliest opportunity. According to the Court of Appeal in HKSAR v Ngo Van Nam CACC 418/2014, paragraph 214 of that authority suggests that where there is an indication of a plea after the fixing of trial dates but before the first day of trial, the court can consider a discount of between 20 to 25 per cent. Paragraph 213 of the same authority states it is appropriate that the courts afford a defendant who pleads guilty on the first day of his trial a discount of 20 per cent from the starting point taken for sentence. This is subject to the overriding discretion of the judge in sentencing.

The defendant in this case should only benefit from a discount of 20 per cent. However, Mr Richmond has submitted that I should exercise my discretion and consider the full one-third discount. Prosecution remains neutral on this submission as I do have a discretion.

Mr Richmond submits the defendant was not aware at the committal stage of all the admissible evidence the prosecution had or intended to adduce against him if he went to trial. He was not arrested for the second box of drugs nor charged for attempting to traffic that second box nor questioned about it. The facts surrounding the second box were not mentioned by the prosecution at the committal stage. He was therefore not pressed by those that represented him to consider that evidence when he was given legal advice.

Defendant, please stand up. I have considered all mitigation put forward, the facts of this case as well as the quantity of ‘Ice’. I accept Mr Richmond’s submission and despite the late plea, afford the defendant the full discount. I will apply a discount of one-third to the starting point of 23 years and 3 months, which will reduce the defendant’s sentence to one of 15 years and 6 months. Do you understand that sentence?

ACCUSED: Yes, my Lady.