HKSAR v. Gurung Suraj

CACC 225/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2014

(ON APPEAL FROM DCCC NO. 157 OF 2014)

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J U D G M E N T

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Introduction

1.The applicant was jointly charged with one other with the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The charge alleged that between 14 June and 17 June 2013 the applicant and his co-accused unlawfully trafficked in a dangerous drug, namely 15.2 kilogrammes of cannabis resin.

2.The applicant and his co-accused appeared before District Judge Dufton (“the judge”) on 16 June 2014 and both pleaded guilty to this offence.  On the same day both were sentenced to 3 years and 4 months’ imprisonment.  The applicant now applies for leave to appeal against that sentence.

The Background to the Offence

3.On 14 June 2013 Customs Officers intercepted a parcel that had arrived at Hong Kong International Airport on a flight from Mumbai, India.  The parcel was addressed to the co-accused at 4^th Floor, 131 Shanghai Street, Yau Ma Tei.  As part of the clearance procedure for the parcel, Customs Officers opened it and found inside 58 individual embroidery paintings wrapped in plastic bags.  Affixed to the end of each of the paintings was a wooden rod.  After breaking open the wooden rods Customs Officers found small packets of suspected cannabis resin wrapped in cling film.  A test for the substance confirmed that it was, in fact, cannabis.  It was subsequently revealed that a total of 6.07 kilogrammes of cannabis resin was concealed inside 116 of these wooden rods.

4.Customs Officers then arranged a controlled delivery of the parcel. When they arrived at the 4^th Floor of the building, the person who answered the door claimed that he was not the recipient.  Customs Officers then proceeded to the 5^th Floor of the same building where the applicant opened the door.  He informed the Customs Officer that although the co‑accused resided at the flat, he was out at that time.

5.On 17 June Customs Officers returned to the flat to attempt a second controlled delivery of the parcel.  Shortly after their arrival the co‑accused returned to the flat and accepted delivery of the parcel, whereupon he was immediately arrested.

6.Under caution the co-accused said that he received the parcel on behalf of the applicant and that he had received two similar parcels on behalf of the applicant that same afternoon.

7.Executing their search warrant the Customs Officers entered the flat and found two large plastic bags which contained embroidery paintings similar to the ones found inside the parcel that they had brought for delivery.  As with the embroidery paintings in the controlled delivery parcel, each of the ends of these other paintings had wooden rods attached to them and these wooden rods also contained cannabis resin.  In addition, cannabis resin was found in other areas of the flat.  The applicant was arrested and cautioned and after initially denying knowledge of the dangerous drugs, the applicant made a full confession that the cannabis resin belonged to he and his co-accused.

8.The total weight of all the cannabis resin found in the flat and the parcel the subject of the controlled delivery was 15.2 kilogrammes and had an estimated street value of $1,140,000.

The Reasons for Sentence

9.The judge referred to the mitigation advanced on behalf of the co‑accused and the applicant by their respective counsel.  For the applicant it was said that he was a minor player in the drug trafficking and not the person who physically brought the drugs into Hong Kong.  The applicant was performing the role only of storing the drugs in his home for which he received a sum of $3,000.  It was said that he needed this money to pay for the rent of the flat.

10.The judge referred to the Court of Appeal guidelines for sentencing in cannabis resin as laid down in Attorney General v Tuen Shui‑ming & Another [1995] 2 HKCLR 129.  That case laid down a sentencing tariff for quantities of cannabis resin over 9,000 grammes of upwards of 4 years’ imprisonment.  The judge also said that as the cannabis had been imported from India, this added an international element to the case.  He said he would therefore adopt a starting point after trial of 5 years’ imprisonment and in this respect he referred to the decision of HKSAR v Sherpa Chhewan Gyabu CACC 220/1998; unreported, 16 September 1998.

11.The judge said that he took into account the fact that the applicant had a clear record but said this did not entitle him to anything more other than the one-third discount for his plea of guilty, as good character only warranted an additional discount where it amounted to positive good character.

12.The judge also referred to the fact that almost a year had elapsed from arrest to trial and noted that this was because the Government Chemist needed just over 6 months to examine the large quantity of cannabis that had been seized.  The judge considered whether this delay justified any further reduction in sentence and was satisfied it did not.

13.Giving the applicant full credit for his plea of guilty, the judge sentenced him to 3 years and 4 months’ imprisonment.

The Grounds of Appeal

14.The applicant is unrepresented and in his Form XI he simply referred to his request to apply to appeal against sentence.  However, in a letter to the court dated 25 August 2014 he set out the reasons why he complains that his sentence is excessive.  Firstly, he says that he was not trafficking in a dangerous drug and the charge is wrong.  His reason for so saying is that he was only in possession of the cannabis.

15.Secondly, he says that in his period of 17 years in Hong Kong he has been a responsible person and so is a person of positive good character, a matter which he says the judge refused to consider.  He also refers to the delay of 1 year in being tried and says that this was without good reason.

16.Finally, he refers to his clear record and complains that the sentence was aggressive and too high.

17.In his oral submission before me today the applicant sought leniency but had nothing further to say relevant to this application.

Discussion

18.There is no merit in any of the complaints of the applicant.  There is nothing wrong with the charge.  The applicant was storing the cannabis so that it could be subsequently handed over to others so that they could traffick in it. By receiving the cannabis resin from India he was importing it; by storing the cannabis resin in his flat he was dealing with it and when he handed it over to others he was supplying it.  Throughout he was clearly in possession of the dangerous drugs for the purpose of trafficking in them.

19.As to his past good character and his clear record this is all subsumed within the one-third discount.  There is nothing about his past life which evidences what the law regards as positive good character which involves some kind of exceptional contribution to the community.  As to the sentence it was in line with the guideline laid down by the Court of Appeal for this type of drug.

Conclusion

20.There being no merit in any of the applicant’s complaints, his application for leave to appeal against sentence is dismissed.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person