HKSAR v. Gurung Tak Parsad and Another

DCCC 312 & 612/2019(CONS)

[2020] HKDC 25

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 312 & 612 OF 2019 (CONSOLIDATED)

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Reasons for Sentence

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1.The two defendants pleaded guilty overall to three charges. The 1st charge is jointly against both defendants and that is a charge of trafficking in a small quantity of heroin hydrochloride. The 1st accused faces the 2nd and 3rd charges alone, that is a further charge of claiming to be a member of a triad society and finally trafficking in a small quantity of methamphetamine hydrochloride (which I will refer to as ‘Ice from now on).

2.The facts are straightforward.  The evidence comes from an undercover police officer who is described as PW1 and he had been working in that role in the vicinity of Yuen Long in June 2017.

3.In the course of his police activities, he met the 1st defendant and in around the end of June, 28 June 2017, the 1st defendant, who is himself a drug consumer, suggested whether PW1 would like some what is described as No 4 white powder.  And PW1 agreed to that and they went along together to the Yuen Long Jockey Club Health Centre where the 1st defendant introduced PW1 to the 2nd defendant, and the 2nd defendant was in a position to provide the packet of heroin hydrochloride to PW1 for some $150. The procedure was that the 2nd defendant gave the drug to the 1st defendant and then it was handed over by him to the undercover police officer.  The money was eventually paid through to the 2nd defendant.

4.The 2nd charge arises out of what I think can be classified as a social conversation between the undercover police officer and the 1st defendant, and on the following day the 1st defendant was asked if he was scared of being beaten up and he said he was not scared because he belonged to the Yuen Long 14K which we all know to be an active triad society in Hong Kong.

5.The 3rd charge relates to matters that occurred about a month later at an amusement game centre in Yuen Long where the 1st defendant approached the police officer and asked if he wanted to try some ‘Ice’, and he was able to supply him with a quantity of ‘Ice’ for some $200. The actual quantity is 0.18 grammes of ‘Ice’ with an estimated street value of $79.92.

6.Just of interest, there was arrests and cautions back in 2017.  The 1st defendant told the officer that he was lying about being a member of the 14K.  Just boasting, I think.  Both defendants admit they trafficked in the relevant drugs.  The 1st defendant agrees he did claim to be a member of the 14K.  The drugs, as they were small quantities, the value of the drugs in the 1st charge, $98-odd, and I have said already in the 3rd charge of $79.

7.As might be expected, both defendants have fairly lengthy histories of involvement with drugs.

8.The 1st defendant is a male of Nepalese origin, Mr Gurung.  He was in fact educated at primary level in Nepal and he has been a construction worker since he has been to Hong Kong.  He admits he is a drug-dependent. He is married and has a son.  He has an extensive drug history dating back to 1997 which clearly supports his mitigation that he is drug-dependent.  He says he takes drugs as a result of his construction work when he suffered injuries and to deal also, one suspects, with fatigue.  It is a common complaint and a common reason for people to become involved in drugs, it is the nature of that employment.

9.He has been to prison, to a Drug Addiction Treatment Centre, been placed on probation.  None of this seems to have succeeded in enabling him to wean himself off the drug.  Most recently convicted in 2019, possession of a dangerous drug, and sentenced to 8 months’ imprisonment.  Naturally this is his only recorded involvement in the sale of drugs.

10.The 2nd defendant is now aged 40 and received secondary education in Hong Kong.  He works as a transport worker.  He is also, on his own admission, a drug-dependent with a history of being involved with drugs dating back to 1994.

11.A number of further convictions for possession of dangerous drugs for which he has been sent to prison, been sent to a Drug Addiction Treatment Centre.  Again, with him, none of this has been successful in stopping him taking drugs.  He was most recently convicted in November of 2018, receiving a shortish prison sentence of 2 months, or 3 months in total, for possession of a dangerous drug.  Again, as far as this defendant is concerned, this is his first involvement in the sale of drugs.

12.Turning to the court’s approach to sentence.  Mr Tracy has very helpfully put forward a detailed submission in respect of his client who faces a total of three charges.  The thrust of Mr Tracy’s submission is that his defendant is not a commercial seller of drugs, he is a person who was prepared to help a friend get access to drugs and was prepared to help him in his desire to consume drugs.  He says in the 1st charge he helped the undercover find somebody who could provide him with drugs and in the 3rd charge he was prepared to supply him with a small quantity of drugs that he had himself.

13.The nature of that mitigation, in my assessment, does not alter the starting point for sentence that I will take in respect of this defendant and in fact the 2nd defendant.

14.As far as the 2nd defendant is concerned, he has pleaded guilty.  He asks for leniency, he prays in aid his lengthy drug addiction dating back to when he was really a child, when he was 11 years old. He said he was just helping a friend get some drugs and he did not receive any financial benefit from his activities.

15.Now, turning to the appropriate starting point for sentence, I am going to adopt the same starting point for sentence for both defendants.  It is agreed that in respect of the drugs in the 1st charge, and that is the heroin hydrochloride, that the quantity of drugs would let it fall within the range of 2 to 5 years’ imprisonment.  Given the small quantity and the nature of the trafficking, the appropriate starting point should be one of 2 years’ imprisonment.

16.On the 3rd charge, that involves a trafficking in a small quantity of ‘Ice’, the appropriate starting point for sentence would be at the bottom of the sentencing band which would be 3 years’ imprisonment.

17.As far as the 2nd charge is concerned that the 1st defendant faces alone, there is no guideline sentence for claiming to be a member of a triad society but prison sentences can and have been imposed for that, it is a serious offence.  Mr Tracy prays in aid the fact that this appears to have arose out of a social conversation.

18.Turning to my actual approach to sentence.  In respect of the defendants, my sentences will be as follows.

19.On the 1st charge, I consider that for both defendants the starting point for sentence that I will take will be one of 2 years’ imprisonment.  After the sentence is deducted for their plea of guilty, that means the sentence for each defendant is 16 months’ imprisonment on the 1st charge.

20.In respect of the 2nd charge against the 1st defendant only, I will take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for that defendant’s plea of guilty.

21.On the 3rd charge against the 1st defendant alone, I will take a starting point again at 3 years’ imprisonment and I will reduce that to 2 years or 24 months’ imprisonment having regard to that defendant’s plea of guilty.

22.As far as the 2nd defendant is concerned, he only faces that single charge, so his sentence is one of 16 months’ imprisonment.

23.As far as the 1st defendant is concerned, there is the question of to what extent any of these sentences should be served consecutively to each other.  All the offences took place on different occasions and as a matter of, I will describe it as technical law, they could be served consecutively.

24.To run these sentences consecutively would obviously lead to far too high a sentence of imprisonment.  I have to look at what the overall totality should be for this kind of criminal involvement.

25.I do consider I do have to, in respect of the 1st defendant, at least recognise that the defendant’s been involved in this on more than one occasion and his sentence should reflect that.  So I do not consider that all sentences should be run wholly concurrently.

26.What I shall do is order that the sentences on the 2nd and 3rd charge, that is the 2 months and the 24 months, should be run concurrently to each other.  But I will order, in order to reflect the fact that the case involves trafficking on more than one occasion, I will order that 2 months of the 1st charge runs consecutively to the 2nd and 3rd charges.  That will give an overall sentence of 26 months’ imprisonment for the 1st defendant.

(T Casewell) District Judge