HKSAR v. Chaudhary Vinay

DCCC 249/2020

[2021] HKDC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 249 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 1.04 grammes of crystalline solid containing 1.04 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance[1] and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance[2].

2.Full particulars of the offence are set out in the amended summary of facts admitted by the defendant today. 

Trafficking in a dangerous drug

3.In summary at around 11:30 p.m. on 2 February 2019 PC 18335, who was acting as a decoy, entered the Golden Harvest Video Amusement Game Centre at No. 11 Tai Tong Road in Yuen Long.  The defendant approached PC 18335 and offered to sell ice for $1,300, claiming the ice was of better quality. 

4.The defendant then led PC 18335 to Ground Floor, No. 199 Castle Peak Road where he asked PC 18335 to wait for the ice.  At 12:01 a.m. on 3 February 2019 the defendant returned with an electronic scale and led PC 18335 to a rear lane where he asked for payment.  After PC 18335 paid $1,300 the defendant gave his identity card to PC 18335 as security.  The defendant told PC 18335 to wait for him there and left the scene. 

5.At around 12:30 a.m. the defendant returned and gave the ice to PC 18335.  The defendant also asked for another $100 for his assistance.  PC 18335 paid the defendant $100 cash.  The defendant told PC 18335 that he could purchase ice from him again next time.    

6.The defendant was arrested on 10 March 2019.

Failing to surrender to custody

7.On 5 May 2020 the defendant was granted bail to appear in the District Court on 26 May 2020.  The defendant failed to attend court.  The defendant was re-arrested in Yuen Long on 28 July 2020 in connection with another offence[3]. 

8.Under caution the defendant claimed his son was sick on 26 May 2020; after taking his son to see a doctor he called the Yuen Long police station who gave him the telephone number of the District Court; the District Court told him an arrest warrant had been issued after which he did not know what to do.  

Mitigation

9.In passing sentence, I have carefully considered the oral and written submission of Mr Pannu, including that the defendant, aged 38 was born in Nepal and came to Hong Kong in 2011 and lives together with his wife and son aged 7[4]. 

10.I take into account the defendant has no previous convictions for drug offences. The defendant has four convictions for theft in 2020 for which he received short sentences of imprisonment.   

11.Mr Pannu explains that due to the stress of life the defendant became addicted to drugs at the instigation of friends[5]. I have read the defendant’s mitigation letter in which he expresses his remorse and says he has reflected on his drug problem while on remand. 

Trafficking in a dangerous drug

12.Mr Pannu explains that the defendant wanting to make some quick money sold ice to the decoy officer because the usual traffickers who sold ice were not in the Game Centre[6].

13.In HKSAR v Tam Yi Chun[7] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

14.On a purely arithmetical approach a starting point of just less than 3 years and 5 months’ imprisonment would be appropriate for trafficking in 1.04 grammes of ice. The arithmetical approach however is only appropriate for the courier or storekeeper recognised to be the lowest rank in the trafficking hierarchy.  Actual or direct trafficking of dangerous drugs to others on the street is more serious[8].

15.Notwithstanding the ice is pure ice and the defendant was selling the ice on the street, taking into account the small quantity of ice and that this is the defendant’s first conviction for trafficking in drugs I adopt a starting point of 3 years and 4 months’ imprisonment.   

Timely plea of guilty

16.The defendant failed to attend court on 26 May 2020.  A defendant who absconds can expect to be given a discount of less than one-third when he pleads guilty and that he will be additionally punished for the offence of failing to surrender to court[9].

17.I agree with Mr Pannu that the usual range of discount afforded to a defendant who has absconded is about 20% to 25%[10].  Mr Pannu submits the inconvenience was not serious and asks for a full one-third discount or as close as the court can allow[11].

18.The defendant was re-arrested just over two months later on 28 July 2020.  As a result of absconding there was one additional court hearing on 30 July 2020.  I am satisfied a discount of 25% is appropriate thereby reducing the sentence to 2 years and 6 months’ imprisonment.  

Failing to surrender

19.The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.  

20.Taking into account that the defendant was arrested just over two months after failing to attend court in connection with another offence and not surrendering to court or the police station, I am satisfied a starting point of 3 months’ imprisonment is appropriate. 

21.Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Totality

22.Failing to surrender to court is a wholly distinct and separate offence from the offence of trafficking in a dangerous drug.  In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[12]. 

23.A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[13]. I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 2 years and 8 months’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[14].

Sentence

24.The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 6 months’ imprisonment and

Charge 2 – 2 months’ imprisonment consecutive to charge 1.

The total sentence to be served by the defendant is 2 years and 8 months’ imprisonment.

Pursuant to section 9M(1)(b) of the Criminal Procedure Ordinance I order the bail money of $500 be forfeited for failing to surrender to custody[15].