Those drugs were found in two bags which you were carrying when you alighted from a vehicle in Tin Yan Road, Tin Shui Wai, in the very early hours of the morning of 26 September 2017. PC7089 tried to intercept you as you got out of the car but you ran away and in so doing, he had to forcibly restrain you and you were slightly injured as a result.
When he searched the two bags, he found the 23.3 grammes of ‘Ice’ in one bag and the 1 kilogramme of herbal cannabis in the other. Along with the ‘Ice’, there was an electronic scale.
Prosecution did not seek to adduce the 1 kilo of what I will refer to as fake ‘Ice’ which had been found in the same bag; “fake” being a popular term nowadays, but in this instance, entirely correct.
It looked, for all intents and purposes, as if you were going to allow your customers to test the real ‘Ice’ and then dishonestly provide them with the fake ‘Ice’. I can see no other reason why you were in possession of it, and you are lucky that the 1 kilogramme of fake ‘Ice’ was not real. We do not know if you realized that at the time as it was not relied upon by the prosecution, nor were the other drugs that were found in the front compartment of the car. You have not been prosecuted for that and you will not be sentenced for it. But it does give me a better overall view of what was happening that evening and your role within it.
You are 33 years of age and an Indian national. I was informed that you first came to Hong Kong in 2001 and remained here until 2005. Despite what you say through Mr Laskey, I have no reason to disbelieve the prosecution. But as Mr Laskey has said, it makes no difference to sentence save that you would have had far longer to learn the local language. In any event, you returned to Hong Kong in 2006 and made a non-refoulement claim. You say you came for that purpose. That appears to have progressed very slowly. I have been told that your claim was refused by the Director of Immigration and you have not sought to appeal. I have to say I find that a bit odd.
You have a criminal record in Hong Kong. You were first in trouble with the police in 2007 and later in 2009 for matters of dishonesty which are dissimilar to the offence you face today. In early 2011, you were prosecuted in the District Court for trafficking in dangerous drugs, possession and assaulting a police officer. For those offences, you received a total of 52 months and 1-week imprisonment. We have not been told the date of your discharge from that sentence.
At some stage, you were then arrested for a further offence of possession and did not answer bail because you were dealt with after an arrest warrant was issued in October 2016 and you received 3 months’ imprisonment. That would account for your discharge on 5 November 2016, as you must have been discharged from the District Court sentence in respect of the trafficking in dangerous drugs at some point in 2014. Your period of imprisonment may account for why your non‑refoulement claim took a while to process.
You told the court you married your wife in 2013, although you have not registered that marriage. I am surprised by that, Mr Amarjit, both because you should have been in prison at the time and because it would have qualified you to at least apply for a dependant’s visa which you say you have not done.
Whilst Mr Laskey is correct in that your personal circumstances can have very little effect on sentence, it does provide the court with information which reflects in the court’s approach and the exercise of its limited discretion.
Your evidence about your personal situation is somewhat confusing. You said on oath that you were married and living with your wife, but you also said that you stayed with a friend that night, the night you were arrested, and you told the police in your antecedent statement that you were single and living with a friend in Yau Ma Tei at the time of this offending, but then you told the jury you lived in Tsing Yi with your wife.
As a refugee claimant, you are entitled to some financial assistance from ISS, and yet you did not claim it in 2017 despite not being allowed to work. You said you were living off your wife’s limited earnings.
The court was told that you have been in Hong Kong for almost 15 years at the time of this offending. On your own account, you had been here 11 years and yet you told the jury you speak very little Cantonese and did not understand the officer when he shouted “police”. Yet in 2017, you say you were married to a local Chinese-speaking lady since 2013 and presumably you knew her before you were married. You had also been in a Hong Kong prison for a considerable period of time at that stage. So you can see that I do not accept that you cannot speak Cantonese well enough to understand when someone shouts “police”. This is just one instance out of others upon which I found that you have been less than frank with the court.
You have not come out of this trial well, Mr Amarjit. Your counsel was extremely careful not to go further than he needed to in order to put your case, but you clearly have not told the truth, whether that is to the police outside of this court or to the jury in trial. The jury did not believe you and I do not believe you.
The fact that AP1 and AP3 were not prosecuted does not mean, however, that I am going to lay all the blame at your door as I suspect that you were simply the person allocated the task of interfacing with the customer, although it is clearly not to your credit that you were both dealing in drugs and trying to deceive your clients at the same time.
You were found guilty of trafficking in two separate types of drugs. The relevant sentencing guideline as you will have been told for the offence of trafficking in ‘Ice’ in September 2017 is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in between 10 and 70 grammes of ‘Ice’, the sentencing range is 7 to 11 years and for trafficking in 23.3 grammes of ‘Ice’, the appropriate starting point after trial would be 7 years and 10 months.
In respect of the herbal cannabis, in Attorney General v Tuen Shui Ming and Another [1995] 2 HKCLR 129, the Court of Appeal laid down guidelines for sentencing. That was in respect of large amounts of cannabis resin. The court said that the usual tariff is to be adjusted for herbal cannabis as it has a lower concentration of tetrahydrocannabinol than cannabis resin and that defendants with herbal cannabis could be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.
In HKSAR v Kwang Sau Fan, the Court of Appeal said that that was no directive that the reduction must be 1 year. So it is clearly within the discretion of the judge and would depend very much upon the amount of herbal cannabis and its value.
I am satisfied the appropriate starting point after trial for trafficking in a kilogramme of herbal cannabis, which was worth HK$223,000 at the time, is 12 months’ imprisonment. If you were to be sentenced for both drugs in this way, you would receive a sentence of 8 years and 10 months without consideration of aggravating features. However, these drugs were recovered at the same time and were charged within the same count. Neither the ratio nor the conversion test assist me in this case and therefore looking at totality of sentence, I take an enhanced starting point from that of the ‘Ice’ and take the enhanced starting point of 8 years 6 months for both drugs taken together under Count 1.
The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. Trafficking in drugs clearly does so. In HKSAR v Ali Saif, CACC 309/2017, [2018] HKCA 358, and the authorities referred to therein, the Court of Appeal said that for a serious offence of trafficking in drugs before the District Court or High Court, they would not expect an enhancement for this factor to be less than 6 months’ imprisonment.
The Court of Appeal said that if the courts do not mark in a meaningful way the significance of a defendant’s betrayal of trust placed in him by the people of Hong Kong and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non‑refoulement applicants. Furthermore, Form 8 recognisance holders whose non-refoulement applications may take several years to deal with must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.
I am satisfied that trafficking in a kilo of cannabis in herbal form valued at $223,000 and trafficking in 23.3 grammes of ‘Ice’ valued at $7,699 is a serious offence of trafficking but not of the most serious kind, and therefore I intend to further enhance the starting point that I have referred to already which was 8 years and 6 months by a further 6 months to 9 years.
The trafficking of dangerous drugs, Mr Amarjit, is a very serious offence and deterrence is therefore an overwhelming consideration and whilst I have heard your personal circumstances, Mr Laskey has accepted that in the face of such a serious offence, there is nothing which has been said on your behalf or which could be said on your behalf which would warrant a more lenient course than would otherwise be the case.
You put the prosecution to proof of their case against you as is your right. You were not completely frank in your evidence before the jury, but in any event in so doing, you lost the opportunity to obtain a one-third discount for your early plea or indeed any discount at all.
You will go to prison for 9 years.