HKSAR v. Singhsukhpal and Another

DCCC 233 / 2020

[2020] HKDC 1134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 233 OF 2020

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REASONS FOR SENTENCE

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1.D1 & D2 both pleaded guilty to 2 counts (Charges 1 & 2) of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. D2 also pleaded guilty to a third count (Charge 3) of “Trafficking in dangerous drugs”

Summary of facts

Charge 1

2.In the evening of 23^rd January 2019, PC 18335 (“PW1”) went to Yuen Long area, New Territories, posing as a customer.

3.At around 2200 hours on the same day in Tsuen Wai Games Centre, D2 approached PW1 and asked if PW1 would like to purchase “Pork”, i.e. “Ice”, for HK$1,300. After some bargaining, D2 agreed to sell Ice for HK$1,000 to PW1. They then exchanged telephone numbers.

4.At around 11:55 pm on that night, PW1 telephoned D2 and asked where D2 was.

5.D2 replied that he was at “Golden Harvest Video Amusement Games Centre” (“the Games Centre”) in Yuen Long and asked PW1 to meet him there.

6.At around 0005 hours on 24^th January 2019, PW1 met D2 arrived at the Games Centre.

7.D2 asked PW1 to follow him and they left the Games Centre. They met up with D1 at the 1^st Floor staircase of No 199 Castle Peak Road, Yuen Long, N.T. where D1 took out a packet of suspected dangerous drugs (“Exhibit 1”) whilst D2 demanded HK$1,000 from PW1. PW1 paid cash of HK$1,000 to D2 and then D1 gave Exhibit 1 to PW1.

Charge 2

8.After the transaction, D2 further asked PW1 if he wanted some marijuana at the price of HK$200 to which PW1 agreed.

9.PW1 then followed D2 to a nearby public lavatory at Hong King Street, Yuen Long, N.T. where D1 took out a packet of suspected dangerous drugs (“Exhibit 2”) whilst D2 demanded HK$200 from PW1. PW1 paid D2 cash in the sum of HK$200 and D1 passed Exhibit 2 to PW1.

Charge 3

10.At around 2330 hours on 31^st January 2019, PW1 went to the Games Centre where he played video games.

11.At around 0015 hours on 1st February 2019, D2 approached PW1 and asked if PW1 wanted to purchase “pork”, i.e. “Ice”, for HK$1,000.

12.When PW1 answered in the affirmative, D2 asked PW1 to follow him.

13.At around 0020 hours that day, they arrived at the same staircase mentioned in Charge 1 where PW1 paid HK$1,000 to D2. D2 asked PW1 to wait there for a while and D2 walked up to the building alone.

14.Shortly afterwards, D2 returned to the scene and passed a packet of crystalline solid containing 1.07 grammes of methamphetamine hydrochloride (“Exhibit 3”) to PW1.

Government Chemist Certificate

15.E1, E2 and E3 were subsequently submitted to the Government Laboratory for analysis respectively with the following results:

(1)  Exhibit 1 –	1 plastic bag containing 0.82 grammes of a crystalline solid containing 0.82 grammes of methamphetamine hydrochloride;
(2)  Exhibit 2 –	1 plastic bag containing 0.65 grammes of herbal cannabis; and
(3)  Exhibit 3 –	1 plastic bag containing 1.07 grammes of a crystalline solid containing 1.07 grammes of methamphetamine hydrochloride.

16.According to the figures from the Intelligence Division of Narcotics Bureau for the Average Retail Price of Illicit Drugs in Hong Kong (2019), the street value of Exhibit 1, Exhibit 2 and Exhibit 3 in the months of January and February 2019 were HK$ 449.36, HK$ 220.35 and HK$ 586.36 respectively.

17.D1 and D2 were arrested in Yuen Long, N.T. on 10^th March 2019.

18.At the material times, D1 and D2 trafficked in dangerous drugs unlawfully.

Previous convictions

19.D1 has 2 previous convictions. The relevant one being his conviction for “Possession of dangerous drug” in 2016 and for which he received 2 months’ imprisonment.

20.Likewise, D2 has 2 previous convictions. He was sentenced on 15^th March 2016 for “Possession of dangerous drug” to 2 months’ imprisonment, suspended for 3 years. By committing the present offences, he was in breach of the suspended sentence.

Background and Mitigation (D1)

21.D1 was born in India. He is currently 46 years old and is single. His parents, sister and brother are all in India. He received education up to primary level.

22.He is a Form 8 Recognizance holder and he has been in Hong Kong for some 15 years. I have been told that prior to his arrest, he received public assistance in the form of food coupons and payment for rent.  Apart from those, he had no other source of income.

23.In mitigation, Mr. Surman, on his behalf, submitted that the number and quantity of drugs involved was not significant. He described the role of D1 as being passive and a mere courier.  Mr. Surman also told me that, due to the very limited public assistance he got, D1 committed the offences to make some “quick money” for his living.

24.Regarding Charge 2, Mr. Surman invited the court not to add to the sentence given the insignificant quantity of cannabis involved. He also urged the court to give D1 a 1/3 discount for his timely plea. Besides, while acknowledging the need to enhance the sentence as D1 is a Form 8 holder, Mr. Surman asked for the court’s leniency in that regard.

Background and Mitigation (D2)

25.He is now aged 43. He is of Nepalese nationality, but was born and educated in Hong Kong. He is married with a 14 years old son. He used to live with his family in Yuen Long and work as a car mechanic prior to his arrest.

26.In mitigation, Mr. Mughal asked the court to give D2 a 1/3 discount for his timely plea. Regarding the breach of suspended sentence, Mr. Mughal urged the court not to activate it as the breach only happened towards the end of the suspension period.   

Sentence considerations

27.The tariff for trafficking in Ice up to 10 grammes is 3 – 7 years imprisonment as per the revised guidelines set out in HKSAR v Tam Yi Chun [1].

28.In HKSAR v Yeung Kam Chun [2]where the amount of ice was 1.59 grammes, the Court of Appeal said:

“For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

29.However, both D1 and D2 have got previous conviction for “Possession of dangerous drug” and I have to bear that in mind in sentencing.

D1’s position

30.Dealing with D1, he pleaded guilty to Charges 1 and 2. Since different kinds of dangerous drugs are involved, namely, ice and herbal cannabis, I need to consider the approach to be taken in sentencing. Given the close proximity, both in terms of time and location, under which the 2 charges were committed, I take the view that the quantity of the dangerous drugs in Charges 1 and 2 should be combined together in considering the overall sentence. 

31.The quantity of herbal cannabis involved in Charge 2 was only 0.65 gramme. Mr. Mughal has rightly pointed out in his submission that herbal cannabis is four times weaker than cannabis resin and accordingly a benchmark tariff sentence of four months’ imprisonment for 2,000 grammes of herbal cannabis has been applied by the courts: HKSAR v Chor Lui [3].

32.Under the circumstances of this case and based on the Combined Approach (under which the herbal cannabis herein was of insignificant quantity and the quantity of ice was 0.82 gramme), I therefore take a starting point of 3 years for each of Charges 1 and 2. 

33.On the other hand, D1 is a Form 8 Recognizance holder. This is an aggravating factor that enhances the length of the sentence.  While the Court of Appeal in Shah Syed Arif [4]stated that it was neither prudent nor possible to issue guidelines, and that the enhancement was best left to the discretion of the sentencing judge, the Court of Appeal also stated subsequently in HKSAR v Ali Saif [5]that it would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District Court or High Court. 

34.Having considered the guidance from the Court of Appeal as well as the facts of this case, the starting point of the sentence to be imposed on the D1 is adjusted upwards by 6 months to 3 years and 6 months’ imprisonment. Given D1’s timely plea of guilty, after 1/3 discount, the sentence is 2 years and 4 months’ imprisonment on each of Charges 1 and 2, and they are to run concurrently.

D2’s position

35.In D2’s case, he pleaded guilty to all 3 charges. As I have already adopted a starting point of 3 years for each of the Charges 1 and 2, after 1/3 discount, the sentence for each of them becomes 2 years’ imprisonment. They are to run concurrently.

36.Having carefully considered the facts of the case, in particular, the dates of the offences, the quantities of drugs involved, I will adopt the Individual Approach in dealing with Charges 1 and 2 on the one hand and Charge 3 on the other.

37.Given the quantity of ice in Charge 3, namely, 1.07 grammes, I take a starting point of 3 years as well. After 1/3 discount for D2’s plea of guilty, the sentence is 2 years’ imprisonment.

38.Taking into account the Totality principle, I order that 9 months on Charge 3 is to run consecutively to the 2 years on Charges 1 and 2, making a total of 2 years and 9 months’ imprisonment.

39.Regarding the breach of suspended sentence, I am persuaded by Mr. Mughal’s submission and accept that the breach happened towards the tail end of the 3 years’ suspension period. I hereby exercise my discretion not to activate the 2 months’ suspended sentence.

Sentence

40.D1 is sentenced to 2 years and 4 months’ imprisonment for each of Charges 1 and 2. They are to run concurrently.

41.D2 is sentenced to 2 years’ imprisonment on each of Charges 1 and 2. They are to run concurrently. The sentence on Charge 3 is also 2 years’ imprisonment of which 9 months is to run consecutively to the sentence on Charges 1 and 2, making a total of 2 years and 9 months’ imprisonment.