HKSAR v. Limbu Chandra Kumar and Another

DCCC 157/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 157 OF 2014

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REASONS FOR SENTENCE

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1.The defendants have both pleaded guilty to one charge of trafficking in 15.2 kilogrammes of cannabis resin, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at 15:30 hours on the 14 June last year a parcel arrived at the Hong Kong International Airport on a flight from Mumbai, India.  Inspection of the parcel revealed 6.07 kilogrammes of cannabis resin concealed inside 116 wooden rods affixed to the end of embroidery paintings. 

3.The parcel was addressed to D1 at the 4/F, 131 Shanghai Street, Yau Ma Tei.  The following day CO 544 and CO 99105, disguised as deliverymen, conducted a controlled delivery at this address.  When the occupant of the 4/F claimed that he was not the recipient of the parcel CO 544 went to the 5/F.  D2 answered the door and said that D1 was out. 

4.The customs officers therefore conducted a second controlled delivery two days later.  Again D1 was out.  D2 said D1 would return soon and shortly afterwards D1 arrived at the flat.  After the officers checked D1’s identity card and D1 signed on the delivery receipt CO 544 revealed his identity and arrested D1.  Under caution D1 claimed he received the parcel on behalf of D2 and that earlier that day he had received two similar parcels also on behalf of D2. 

5.The customs officers then executed a search warrant of the flat.  Enquiries revealed D2 had rented the flat and that D1 paid D2 $3,000 for rent of one of the bedrooms.  Inside the bedroom rented by D1 customs officers found two large plastic bags containing embroidery paintings similar to the ones found in the parcel.  A total of 8.56 kg of cannabis resin was found concealed inside the wooden rods affixed to the end of the paintings. 

6.Wooden rods were also found in a drawer of a cabinet in the dining room inside which 0.04 kg of cannabis resin was concealed.  A further 0.53 kg of cannabis resin was found in a black bag hanging on the wall of the dining room.

7.D2 was arrested and under caution denied knowledge of the cannabis resin.  Later when being informed he would be charged with trafficking in a dangerous drug D2 said he had something to say.  A video interview was then conducted in which D2 admitted the cannabis resin belonged to him and D1.

8.In passing sentence I have carefully considered everything said by Mr Davies on behalf of D1 and by Mr Dunn on behalf of D2. Both Mr Davies and Mr Dunn submit the defendants were minor players in the drug trafficking and were not the ones who physically brought the drugs into Hong Kong.

9.Mr Davies says that D1 was used by others to receive and store the drugs for which he would be given a small quantity of cannabis as his reward.  D1 therefore paid $3000 to D2 to store the drugs in his home.  Mr Dunn says that D2 needed money to pay the rent and therefore agreed to D1 storing the drugs in his home.  

10.In Attorney General v Tuen Shui Ming & another [1995] 2 HKCLR 129 the Court of Appeal laid down guidelines for sentencing in cannabis resin.  Where the quantity of cannabis resin is over 9000 grammes sentence after trial is upwards of 4 years imprisonment. 

11.Although the drugs were not carried into Hong Kong by either of you they were imported from India adding an international element to the case.  In these circumstances I am satisfied a starting point after trial of 5 years imprisonment is appropriate for trafficking in 15.2 kilogrammes (see HKSAR v Sherpa Chhewan Gyabu CACC 220/1998). 

12.In reaching the starting point I have taken into account D2 has a clear record.  Good character is taken into account in determining the proper starting point and additional discount is given only where there is evidence of positive good character (see for example Secretary for Justice v Tso Tse Kin [2004] 2 HKC 139 and HKSAR v Cheng Kelly Kit YinCACC 445/2013).  

13.D2 is therefore not entitled to a reduction in the starting point by reason of his clear record.  The question remains whether the starting point should be increased by reason of D1’s previous conviction for possession of drugs.  For that offence D1 was sentenced to 12 months probation which expired in March 2013.  Three months later D1 was involved in drugs again showing the previous sentence had no deterrent effect on him.  Although the conviction is a recent conviction relating to dangerous drugs I am satisfied a single conviction for possession only does not justify an increase in the starting point.

14.I have also considered the fact almost a year has elapsed from arrest to trial.  This is because the Government Chemist needed just over six months to examine the large quantity of cannabis seized.  I am satisfied there is to be no reduction in sentence on account of the time taken to bring the case to court.  

15.Giving the defendants full credit for their pleas of guilty they are both convicted and sentenced to 3 years and 4 months imprisonment. 

Please refer to CACC225/2014 for the relevant appeal(s) to the Court of Appeal.