HKSAR v. Magar Dhurba Kumar

DCCC 967/2018

[2019] HKDC 1647

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2018

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Reasons for Sentence

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1.The defendant pleaded not guilty to one count of trafficking in 10.92 grammes of Ice even though he admitted possession of the same. He was found guilty of the charge after trial.

The Prosecution Case

2.The facts are straight forward. Police officer spotted the defendant outside the ground floor of No. 15 Hong King Street in Yuen Long. When intercepted, the defendant dropped the silver coloured foil onto the ground. The foil contained two large and one small resealable plastic bags. The two large bags contained 13.4 grammes of crystalline solid containing 10.8 grammes of Ice and the smaller one 0.15 gramme of a crystalline solid containing 0.12 gramme of Ice. One mobile phone, one Octopus card and some foreign currencies were found on the defendant.

Mitigation

3.Defence counsel submitted that the court should consider a large proportion of the drugs so seized was for the defendant’s own consumption hence a bigger discount in sentence should be given to the defendant. The case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 was referred to. It is submitted that the defendant was a drug user and the result of his urine test confirmed that. The court is urged to give the defendant a lenient sentence.

Sentence

4.The 51-year-old defendant was born in Nepal in 1968 and he obtained his Hong Kong ID card in 1995. He is married and was a drug addict. He received higher education in Nepal and in Hong Kong he worked as a construction worker. Since 2001 February, the defendant had four previous convictions with two related to possession of dangerous drug. He had been sent to DATC in 2001 and 2008. The latest conviction was one of theft in 2017 and he was fined $500.

5.The defendant was found guilty after trial. He indicated his plea to simple possession of the drugs so seized but it was rejected by the Prosecution. This might well be his tactical move but, in my view, the defendant’s position is different from what happened in the abovementioned case of Chow Chun Sang where the appellant pleaded guilty to four counts of trafficking in dangerous drug. In that case, the Court of Appeal took the view that if all or part of the drugs was for the defendant’s self-consumption, the discount to sentence should be between 10% to 25%.

6.In the present case, the total quantity of methamphetamine hydrochloride is 10.92 grammes. According to the sentencing guideline, trafficking in 10 grammes to 70 grammes of Ice attracts a sentence between 7 to 10 years. Hence, the appropriate sentence that the defendant in the present case is to face is about 7½ years which inevitably will exceed the jurisdiction of District Court. I have also considered the possibility of having some drugs for self-consumption that the Defence counsel raised. That said, I do not accept that a large proportion of Ice so seized was for the defendant’s self-consumption.

7.Taking all factors into account, I adopt a starting point of 7 years, and give a discount of 9 months to sentence to reflect the issue of self-consumption. That reduction of 9 months is more than 10%. There are no other mitigating factors in the defendant’s favour. Accordingly, I sentence the defendant to an imprisonment term of 75 months.