HKSAR v. Sundip Singh Sunny and Another

DCCC 385/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 385 OF 2014

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Reasons for Sentence

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1.D1 faces one joint charge with D2 (charge 1) and 5 trafficking in dangerous drugs charges alone (charges 2 to 6). D1 pleaded guilty to charges 1, 2 and 3, admitted to the summary of facts and was duly convicted on the 3 charges. At the request of the prosecution and with D1’s consent, charges 4, 5 and 6 are to be kept in the court file, not to be proceeded with against D1 without the leave of court.

2.D2’s trial on charge 1 proceeded, being a charge for ‘Doing acts preparatory to or for the purpose of trafficking in substances believed to be dangerous drugs, contrary to s.4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap.134. D2 was convicted after trial of charge 1.

Summary of facts

Facts in relation to charge 1

3.The facts in relation to charge 1 are set out in details in the Reasons for Verdict in relation to the trial of D2 on charge 1. In gist, on the night of 16^th November, D1 was instructed by Mo Chong Man to collect and then make deliveries of ketamine and cocaine (collect only) to different people at various places. D2 was the driver of taxi DC 3173 and he was the person who leased the taxi for the month of November 2012 as the night shift driver.

4.Together with PW1, they went first to Tsui Ping Estate to pick up some dangerous drugs, then drove to Kowloon Bay MegaBox where a tube container with dangerous drugs was thrown into the car that the taxi and stopped next to through the opened windows of the cars.

5.Next they went to Hung Hom train station where D1 got out of the taxi and into a black Mercedes. D1 then returned to the taxi and handed over $5,200 to PW1 for him to count. They then went to Sa Po Road where the taxi stopped behind a different black Mercedes and D1 delivered two packets to the driver.

6.Their next stop was Hoi Lai Estate in Cheung Sha Wan, where D1 and PW1 got out of the taxi once there and D1 gave 2 packets of drugs to a man.

7.They then got back into the taxi and D2 drove them to Broadway Street of Mei Foo Sun Chuen. When there, a man got into the taxi’s rear seat and D1 gave 2 packets of white powder to the man. After the man got out, the taxi stayed put and waited for one of the earlier black Mercedes Benz (RT 4782). D1 got into that Mercedes and came back out with a bag of yellow crystalline substance that he referred to as ‘Cola’ and explained to PW1 that it was cocaine.

8.D2 then drove the taxi to Chatham Court in Tsim Sha Tsui where D1 got out and waited for about 5 minutes and then returned into the taxi when he handed a blue cigarette box to PW1 and told him to do ‘this last case’. D1 then told D2 to drive to Lai Chi Kok Road.

9.They arrived at 00:17am on 17^th November. A man got into the rear passenger seat of the taxi and PW1 handed over the said blue cigarette box to the man who hid it inside his underpants before he got out of the taxi.

10.That was their last transaction for the night and they then drove to a Chiu Chow restaurant in Kwai Fong where D1 and PW1 got off. Just before they did, D2 told D1 that they did not have to pay the taxi fare yet, that D2 will sort it out with Sai Guai (Mo Chong Man) later.

11.PW1 and D1 met Mo Chong Man and other at the restaurant. Later on, PW1 saw Mo gave D1 $2,000 and told D1 that the money was remuneration for the deliveries he made earlier. Mo then told the group to go to a bar for drinks.

12.The group arrived at the bar first and was then joined by Mo and others. Mo asked PW1 about his delivery experience in delivering ketamine that evening and said that he will have other jobs for PW1 in future.

13.At around 4:15am, D1 gave $500 cash to PW1 when they were leaving the bar, saying that the money was PW1’s remuneration for what he did earlier on.

Charge 2

14.About 2 months before the charge 1 incident, on 15^th September 2012, PW1 received a phone call from D1 asking to meet in Mongkok. They did meet up at about 4:30pm the same day and D1 introduced another man “BT” to PW1. They led PW1 to Chung King Mansion where D1 told PW1 to give him $400 and then entered the Mansion while PW1 and BT waited outside. When d1 came out at about 5:41pm, he gave a piece of black solid to PW1 and said that it was cannabis resin. D1 told PW1 to look for a buyer and see if he could make some money. The black solid was later confirmed to contain 4.55g of cannabis resin by the Government Laboratory.

Charge 3

15.Two weeks later on 29^th September 2012, PW1, D1 together with two others arrived at Kwai Oi House of Kwai Fong Estate at around 9:47pm. D1 took out a piece of black solid from his trousers pocket and said that it was a piece of cannabis. D1 split the solid into two smaller pieces and lit up one piece to melt it. D1 then wrapped the melting piece with the tobacco in a cigarette and lit it up. D1 took a puff and then offered it to the others. PW1 declined the offer while the other two men took turn to smoke it. Later on the same night at 10:01pm, D1 made another cigarette with the other piece of cannabis, lit it up and shared with the same two men.

Previous convictions

16.D1 was sentenced to a total of 24 months’ imprisonment on 8^th October 2014 in the District Court for 5 charges. He was therefore of clear record at the time of the commission of the present offences.

17.D2 has one spent conviction for burglary in 1992. His only other conviction was for affray in 2002 when he was sentenced to 18 months’ imprisonment, reduced to 15 months on appeal.

Mitigation

D1

18.D1 is 19 years old. At the suggestion of D1’s counsel Mr. Khosa, a Drug Addiction Treatment Centre report was prepared on the defendant. Although the report confirmed the defendant as drug dependent, the defendant was not recommended for treatment at a DATC because he has recently been sentenced to 24 months’ imprisonment in another case.

19.D1 had a clear record at the time of the commission of the present offences and was only 17 years old. The offences in our present case arose out of the same operation “High Scorer” in which PW1 was an undercover Police officer.

20.In the related case of DCCC 386 of 2014, D1 was convicted after trial of 5 offences. For the charge of Claiming to be member of a triad society, D1 was sentenced to 5 months’ imprisonment. For the charge of acting as a member of a triad society, D1 was sentenced to 11 months’ imprisonment. For another charge of Acting as a member of a triad society, where D1 received $360 from PW1 as joining fee, D1 was sentenced also to 11 months’ imprisonment. For the charge of Conspiracy to wound with intent, D1 together with PW1 and 3 others conspired to attack a certain taxi driver outside Eastern Magistracy. PW1 was supposed to use a glass bottle to attack the driver in November 2012. The group was supposed to beat the driver up until ‘his eyes burst’. The conspiracy was not carried out in the end. D1 was sentenced to 22 months’ imprisonment on this charge.

21.Having considered the principle of totality, the learned District Judge passed a total final sentence of 24 months’ imprisonment for the 5 charges.

22.It is Mr. Khosa’s submission that if the present 3 charges were brought together with the other 5 charges in the earlier District Court case, the most serious charge would still be the conspiracy to wound with intent. As for the present 3 charges, Charge 3 relates to trafficking in cannabis by way of sharing two cigarettes among friends and is at the lower end of the spectrum of criminality. It is not disputed that for trafficking in up to 500g of cannabis, the sentence is at the discretion of the sentencing judge.

23.Charge 2 relates to where 4.55g of cannabis resin was given to PW1 at Chung King Mansion. It is not disputed that for trafficking in under 2000g of cannabis resin, the tariff sentence is that of up to 16 months’ imprisonment. It is Mr. Khosa’s submission that for 4.55g, the criminality is at the lower end of the spectrum.

24.In relation to charge 1, Mr. Khosa pointed out that the dangerous drugs that was delivered by D1 was ketamine while the cocaine was merely received by D1 after he had gotten into the black Mercedes RT 4782 and there was no evidence of any onward sale of the cocaine.

25.Having pointed out that the tariff sentence for trafficking in between 1 to 10g of ketamine is that of between 2 to 4 years’ imprisonment, Mr. Khosa then pointed out that the problem is that there is no evidence as to the quality and total quantity of ketamine that was being trafficked. Mr. Khosa suggested that there would be a fair bit of speculation as to what the quantity might have been, and suggested the benefit of the doubt should go to D1 and D2.

26.I was told that D1’s family had realized his wayward behaviour and was planning to send him back to India. Air-tickets had been issued and D1 was supposed to leave on 2^nd April, accompanied by his grandparents who were responsible for bringing up D1.

27.It is Mr. Khosa’s submission that D1 had been exploited by the triad society and that the only explanation for D1’s criminal behaviour is that of plain stupidity. D1 was a first offender who is 19. He was a foot soldier for those who are running the operation behind the scene.

D2

28.D2 is 38 and single. He was educated up to Form 4 level in Hong Kong. He worked as a warehouse worker, transportation worker and finally a taxi driver. Despite what is stated in his antecedent statement, D2 claimed that he did not take drugs although he did join the Fook Yee Hing triad society. D2 has 3 elder brothers and 3 elder sisters. He lives with his father and 2 elder brothers.

29.It is Mr. Cheung’s submission that D2’s role in charge 1 was ‘small’, he did not touch any of the drugs nor did he throw anything out of the car into another car. Mr. Cheung submitted that if the guidelines in Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 was applied, for trafficking in between 1 to 10g of ketamine, the sentence would be in the range of 2 to 4 years’ imprisonment, but if there was no amount, the tariff is not suitable.

30.Letters of mitigation were handed up. They are from the defendant’s father, girlfriend and friends. They all speak to D2’s good character as a son, a boyfriend and a friend and none of them could believe that D2 actually committed the present offence.

Whether Sentencing tariff cases apply to charge 1

31.In relation to charge 1, I find that the sentencing tariffs as set out in the relevant cases do not apply to a charge under s.4(1)(c) of the Dangerous Drugs Ordinance. The guidelines focus on the quantity of drugs being trafficked and given the fact that an accused can still be convicted of s.4(1)(c) even if the substance being trafficked was in fact not a dangerous drug, the only logical conclusion must be that the sentencing tariffs apply only to charges under s.4(1)(a).

32.Having said that, I find nevertheless that the nature, quality and quantity of the drug being trafficked or to be trafficked are important factors to be considered when sentencing offences under s.4(1)(c), as well as the need for the sentence to include an element of deterrence.

Sentence

33.The maximum sentence for charges 1 to 3 is that of a fine of $5,000,000 and imprisonment for life.

Factors considered in relation to charge 1

34.A total of 6 deliveries of ketamine were made within a few hours on the night of 16^th November and early hours of 17^th November 2012. This was in the same month when D1 had conspired with 4 others to attack the taxi driver outside Eastern Magistracy. The facts suggest that D1 was not just a stupid young man who had no idea what he was doing. Instead, D1 took part in different areas of the triad society’s operations, flexing their muscles in the conspiracy to attack and creating income through the distribution of dangerous drugs. While D1 must not be punished again for his crime in the earlier District Court case, I find that I am entitled to take into account his overall behaviour when gauging at his mentality during his commission of the present offences.

35.Although D1 might be one of the foot soldiers in the distribution of the dangerous drugs, evidence show that he was also coercing PW1 into joining in the trafficking by threatening that PW1 would be chopped up on the one hand and paying $500 to PW1 at the end of the night on the other hand. Again, D1’s behaviour was not simply that of a stupid young man following orders of his superior, he himself was adopting the position of someone who was above PW1 in the hierarchy.

36.In relation to D2, I cannot accept that he played a small role in the operation. D2 leased the taxi in his own name and was the night shift driver of the taxi for the whole month of November. Without D2’s taxi, the distribution could not have been done so swiftly and D1 could not have been so open about the dangerous drugs while inside the taxi, had D2 not been an integral part of the trafficking.

37.Based on the evidence available, the trafficking on the night was definitely premeditated and well organized, involving at least D1, D2, Mo Chong Man and PW1. The arrangement was relatively sophisticated, with Mo Chong Man placing the order for D2 to drive D1 around to make the deliveries and collections, and then for D2 to seek payment of the taxi fare afterwards from Mo Chong Man. D1 was committing the offence for financial gain ($2,000) while D2 was making at least around $400 for driving Mo Chong Man, D1 and PW1 around that night.

38.On the other hand, the drugs involved were ketamine and evidence suggest that the quantity could not have been huge, given the size of the packets containing the white powder as described by PW1 (2” x 3”) and the number of packets involved. There is also no evidence as to the quality and quantity of the cocaine that D1 had gotten back from RT 4782 and furthermore there is no evidence that this drug was being sold on.

39.Based on the above observations and taking into consideration all circumstances, I find that a proper starting point is that of 3 years’ imprisonment for both D1 and D2.

D1’s sentence on charge 1

40.In relation to D1, given that he pleaded guilty to the charge on the first day of trial, I will grant him the usual one-third discount and reduce the sentence to 24 months’ imprisonment. I will further reduce this sentence by 2 months in view of the fact that he was of clear record at the time of the commission of this offence, resulting in a sentence of 22 months’ imprisonment on charge 1.

D2’s sentence on charge 1

41.In relation to D2, given that he was convicted after trial, there is to be no discount and D2 is sentenced to 3 years’ imprisonment on charge 1.

D1’s sentence on charge 2

42.For the 4.55g of cannabis resin that D1 trafficked in, I adopt a starting point of 9 months’ imprisonment, reducing it to 6 months for his guilty plea and further reduced to 5 months for his then clear record.

D1’s sentence on charge 3

43.Given the circumstances of the commission of charge 3, I will adopt a starting point of 6 months’ imprisonment, reduced to 4 months upon the defendant’s guilty plea and further reduced to 3 months for the defendant’s then clear record.

Totality in relation to D1

44.I am afraid I have to disagree with Mr. Khosa when he said that of all the offences that the defendant had committed, the most serious one was the conspiracy to wound with intent. I find that what the defendants did in charge 1 in our present case was at least equally serious, because although the harm was not immediate, it involved more potential victims and the damage to them can be of very long term and more devastating than a wound from being hit by a glass bottle. The harm of dangerous drugs to the human body is well documented and publicized and the legislature has decided that trafficking in dangerous drugs is such a serious offence that it required a maximum sentence of life imprisonment.

45.Furthermore, as I mentioned above, D1 was not just a simple young man who was exploited by someone to commit the present offences. He knew clearly what he was doing and was actively taking part in the trafficking. He will therefore suffer the full consequences of his action. Young people must be deterred from taking part in illegal activities thinking that they can use youth as an excuse when caught.

46.Having said that, the court must then take a step back and consider the principle of totality and decide on the punishment that D1 should face for all that he had done.

47.I have so considered and will first of all order 1 month of each of charge 2 and 3 be served consecutively to the sentence in charge 1, the balance to be served wholly concurrently, making a final sentence of 2 years’ imprisonment in the present case.

48.I order that 9 months of this sentence to be served consecutively to the 2 year sentence that the defendant is serving presently, with the balance to be served concurrently. Taking the overall sentence for the offences that D1 had been found guilty of in Operation ‘High Scorer’ thus far to that of 2 years and 9 months’ imprisonment.