HKSAR v. Kushwaha Shankar Prasad Singh

HCCC 401/2019

[2020] HKCFI 2907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 401 OF 2019

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

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COURT: Defendant had pleaded guilty before me of one count of trafficking in a dangerous drug, namely 27.3 grammes of a crystalline solid containing 24.2 grammes of methamphetamine hydrochloride.

The facts he admitted to is that on 4 October at about 10 to 1 am in the morning, when the police were patrolling outside McDonald’s in the Hung Fuk Shopping Centre, Tin Shui Wai, they spotted the defendant and intercepted him. The defendant then abruptly went over to the bushes and fled towards Hung Tin Road. The police officers gave chase and during that time the defendant threw an object into carton boxes outside the shopping centre. The defendant was finally subdued and PC20359 returned to the place where he had seen the defendant throw the object and a cigarette box was found, inside of which were found the drugs which is the subject matter of the charge.

In a subsequent video-recorded interview under caution, the defendant denied that he had tried to escape or run away and denied that he knew anything about the box of drugs that was found. He claimed that the money seized on him was from playing videogames and Pai Gow and he said that the iPhone belonged to his friend, while the Nokia phone belonged to him.

Subsequent checking of the CCTV cameras confirmed that the defendant had thrown an object into the carton boxes. When the defendant was arrested there were two telephones found on him with three SIM cards and cash of $9,455.10 and the estimated street value of the drugs seized was $15,397.

The defendant is a Nepalese citizen and he was born in 1980. And he is a Form 8 holder in Hong Kong and he has two previous convictions for breach of condition of stay, one in 2010 and one in 2005. So this is the first time that he has been convicted of trafficking in drugs.

Now, in mitigation, Mr Pannu, as usual, has given a very well-prepared mitigation on behalf of the defendant. The defendant had come to Hong Kong in 2004 and had been a Form 8 holder since his arrival. He married a Hong Kong lady on 29 December 2017 and Mr Pannu says that they met in 2012. She is an employee of the Kowloon Motor Bus Company and they have both been living off her earnings since that time. They live in a housing estate in the New Territories and she earns about $23,000 a month. In January 2018, the defendant and his wife had filed for his dependency visa with the Immigration Department. And pending approval of his dependency status, the Immigration Department had sought clarifications about the financial position of his wife. That is why up to the time of his arrest there had not been an approval of this dependency visa application. So at the time of this offence he was still a Form 8 holder.

It is submitted by Mr Pannu that the defendant became addicted to drugs under the influence of some other asylum seekers and that he claims that he takes about 1 gramme each time and that at the time of his arrest he was on 2 grammes a week. His urine report taken from a sample after his arrest, two days after his arrest, confirms that he had amphetamine in his urine.

Now, it is submitted by Mr Pannu that the defendant claims that the drugs were for his self-consumption and I have indicated to Mr Pannu that I am not going to accept that the drugs were for his self-consumption and that only a small part may have been for his consumption and that if he wishes to prove that a large part was for his own consumption, then he is welcome to call the defendant to give evidence. Mr Pannu, very properly, having taken instructions, says his client will not give evidence and will accept my discretion as to how much discount is given for his self-consumption.

Now, Mr Pannu has properly identified that the sentencing guidelines for methamphetamine hydrochloride is laid down in the case of Tam Yi Chun in 2014 where the Court of Appeal recommends that for trafficking in between 10 to 70 grammes of ‘Ice’ would merit a starting point sentence of 7 to 11 years. So on the amount of drugs, which is 24.2 grammes, would merit a sentence of about 7½ to 8 years. Mr Pannu, very efficiently, worked out that mathematically it would amount to about 7 years 11 months. Well, having taken into account the facts of the case, that this is the first time the defendant has committed a drug offence, I will take the lower starting point of 7½ years.

However, he is a Form 8 holder and as the case of Janaka had pointed out, the Court of Appeal had pointed out that they would have enhanced the sentence by 9 months for Janaka for trafficking in 25.91 grammes of ‘Ice’. However, I do accept what Mr Pannu says, that the defendant is slightly different, his status is slightly different in that he was in the process at the time of his arrest in the process of applying for a dependency visa and the amount of drugs is of a lesser quantity. So I would enhance the sentence by 6 months. So that will bring it to 8 years.

And then as far as the discount for the plea is concerned, the defendant is not entitled to a full discount. As has been indicated by the Court of Appeal in the case of HKSAR v Ngo Van Nam that a person is only entitled to the full one-third discount if at the committal stage and in the magistracy he informs the magistrate that he wants to plead guilty and then he is committed to the Court of First Instance for sentencing. So after committal, then he is only entitled to a 25 per cent discount. And I will not meddle with that, so I will consider that he is entitled to a 25 per cent discount, thus bringing the sentence down to 72 months.

Now then there is the matter of self-consumption. I do not accept that the defendant was partaking so freely of the amount of drugs he was carrying. First of all, he is unemployed, and second, he had the drugs in a cigarette box in the early hours of the morning away from home. So he may be tempted to take a little of what he had for his self-consumption. So I will discount it by 4 months and so he is sentenced to 68 months, which is 5 years and 8 months.