HKSAR v. Sunil Kumar

DCCC 693/2022

[2023] HKDC 1231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 693 OF 2022

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REASONS FOR SENTENCE

The defendant faces a charge of "Trafficking in a dangerous drug". He pleaded guilty to "possession" but the prosecution decided to proceed with "trafficking". He was convicted of "possession" after trial.

2.I have summarized the evidence in my Reasons for Verdict.  In gist, the defendant was stopped and searched on the street in Mongkok.  The following items were found in his left front trouser pocket :-

Two pieces of tissue paper (collectively Exhibit P2)  wrapping a red edge transparent resealable plastic bag which contained 14.9 grammes of a solid containing 10.4 grammes of cocaine (Exhibit P1).

3.Upon arrest and under caution, the defendant replied in Hindi "I bought this packet of white powder for $500 at Thistle Street Garden from an unknown male for my own consumption." 

Mitigation & Sentence

4.The defendant will turn 38 next month and has 1 conviction record (dated 2017), which involved an immigration offence.  He is a Form 8 holder and appears to be single.  He reported that his family members reside in India.  In mitigation, Mr. Allan submitted that before he was granted bail pending trial, the defendant had spent about 6 months in jail custody, which is equivalent to a 9-month sentence.

5.According to the DATC Report, the defendant is not a drug dependant and thus not suitable for admission.  The report revealed that the defendant came to Hong Kong legally from India in 2016.  He later remained in Hong Kong and applied for refugee status. Since he is not eligible for employment, he relies on subsistence support from NGOs.

6.In the present case, 10.4 grammes of cocaine (contained in one resealable plastic bag)  were involved.  They were found in the defendant's left front trouser pocket. When determining the proper starting point, I have borne in mind the principles laid down in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a fresh offender of drug-related offences, for the quantity and nature of the drug involved, I adopt a starting point of 12 months' imprisonment.  Second, although based on the quantity and packaging of Exhibit P1, I was unable to rule out the possibility of self-consumption, I cannot ignore the latent risk involved in 10.4 grammes of cocaine, which I consider to be moderate to high.  I will add 4 months to reflect it.  The starting point thus becomes 16 months.

7.I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise)  to seek refuge in another country. I understand that the verification of refugee status can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[1]. By its nature as well as the circumstances of its commission, the present offence, though "simple possession", clearly has a serious detrimental effect on the community at large. I will add 2 months and increase the starting point to 18 months.

8.Since the plea offer was made to the prosecution on the 1^st day of trial, I would grant the defendant a discount of 4 months (22.22%)  for his guilty plea to "possession". The sentence is therefore reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment for "simple possession" of 10.4 grammes of cocaine.