HKSAR v. KULWINDER SINGH (M)

DCCC855/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 855 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 4 charges. Each of the 1^st Charge and the 2^nd Charge was for the offence of dealing with goods to which the Dutiable Commodities Ordinance applied, contrary to sections 17(1) and 46(3) of the Dutiable Commodities Ordinance, Chapter 109. The 3^rd Charge was for the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The 4^th Charge was for the offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Chapter 115 and by virtue of regulation 2 of the Immigration Ordinance Chapter 115A.

Facts

2.  About 5 p.m. on 5 July 2016, the defendant came out of a shop on the 1^st floor of a building in Kowloon City (“the Shop”).  He went downstairs with a black object in angular shape to the ground floor.  He obtained an empty plastic bag from a nearby shop, and put the black object inside the bag.  He was then intercepted by customs officers outside the ground floor of the building.

3.  The customs officers conducted a search and found the black object containing 1,000 sticks of cigarettes with the mark “Hong Kong Duty Not Paid” appearing on the packing of the cigarettes (Charge 1). 

4.  The customs officers also found two keys inside the defendant’s shoulder bag.  They escorted the defendant back to the Shop and entered the Shop with the use of these keys.  A search was conducted inside the Shop.  The following exhibits were found:

(1)24 cartons containing a total of 153,420 sticks of cigarettes of assorted brands with their packing either bearing the HKDNP mark or not bearing the HKSAR health warning (Charge 2);

(2)18 plastic packets containing a total of 4,330 grammes of cannabis resin inside a rucksack (Charge 3); and

(3)an electronic scale.

5.  A plastic packet containing 3.06 grammes of cannabis resin was found from the right front trouser pocket of the defendant.

6.  Under caution, the defendant claimed that the cigarettes did not belong to him, and that his boss gave him $2,000 for delivery.

7.  In a subsequent video recorded interview, the defendant stated under caution that he came out of the Shop with cigarettes at the material times.  He got paid for delivering the cigarettes and cannabis resin.  His boss was in China.  His boss knew that he was in need of money and provided him with work and money so that he could send money back to his home in India.

8.  Subsequent investigation reveals that the defendant entered Hong Kong at 1:33 p.m. on 5 July 2016 via Sha Tau Kok Control Point from Mainland China on the strength of his Republic of India passport.  He was permitted to enter and stay as a visitor until 19 July 2016 subject to the condition that he was not allowed to take up any employment whether paid or unpaid (Charge 4).

9.  Between 7 June 2016 and 2 July 2016, he had travelled to Hong Kong from the Mainland on 13 occasions. 

10.  According to Mr. Karbhari, the learned solicitor acting for the defendant, the defendant was asked by his boss to deliver the whole lot of cannabis resin but the defendant refused.  He only agreed to deliver the 3.06 grammes of cannabis resin found on him.  The defendant admitted that he was keeping and storing the cannabis resin that formed the subject matter of Charge 3 for his boss. 

11.  The summary of facts prepared by the prosecution stated that the defendant rented the Shop at a monthly rent of HK$1,100 since 15 October 2015.  Mr. Karbhari informed this Court that the defendant did not rent the Shop but his boss took the defendant’s passport to rent the Shop and paid the rent.

12.  A total of 154,420 sticks of dutiable cigarettes were involved in Charges 1 and 2.  Their total value was HK$393,677.  The total duty payable was HK$294,325.

13.  The total value of cannabis resin that formed the subject matter of Charge 3 and the 3.06 grammes of cannabis resin found from the defendant’s trouser pocket was HK$389,975.

Criminal record

14.  The defendant has a clear criminal record.

Personal and family background

15.  The defendant was born on 26 July 1994 in Punjabi in India.  He is now 22 years old.  His father passed away in 2014.  His mother is now 44 years old.  He has two sisters and one younger brother.  He is the eldest amongst his siblings. He got married in April 2016.  His wife is 19 years old.  He received education only up to the primary level.  He earned between HK$3,000 to HK$5,000 a month through selling mobile phones in India which he purchased in Hong Kong and the Mainland, and through taking groceries such as rice to the Mainland.

Mitigation

16.  Mr. Karbhari pointed out that the defendant was only 21 years old at the time of the offence.  The defendant had been coming to Hong Kong for the past two years for his mobile phone business.  He was the sole breadwinner of his family.  On the day when the offence took place, the defendant’s mother had a heart problem and was admitted into hospital.  Since the defendant was in need of money, he committed the offences. 

17.  According to Mr. Karbhari, the defendant had tried his best to assist the authorities after his arrest.  He had provided the name, age, photograph and the Chinese mobile phone number of his Chinese boss to the police and all these information had been related to the Chinese authorities for taking action against his Chinese boss.

18.  Mr. Karbhari stressed that the defendant was young and had a clear record.  He also said that the defendant was extremely remorseful for what he had done and vowed not to commit any offence in the future.  He also pleaded guilty at the outset.  Mr. Karbhari asked for mercy and leniency for the defendant.

Reasons for sentence

193 For each of the offences committed by the defendant, the usual sentencing option is one of imprisonment according to the applicable sentencing tariff or previous sentencing cases. In the present case, the defendant committed a total of 4 such offences. In addition, the facts show that each offence on its own was already a serious one. For these reasons, notwithstanding the relatively young age of the defendant and the mitigation put forward by Mr. Karbhari, this Court has no alternative but to impose a term of imprisonment on the defendant.

20.  As to the length of the prison term, I shall deal with Charge 3 first.  In Attorney General v Tuen Shui-ming & Another[1], the Court of Appeal laid down the sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking.  It appears that for trafficking in 3,000 to 6,000 grammes of cannabis resin, the proper starting point of the term of imprisonment was between 24 to 36 months.

21.  Mr. Karbhari pointed out that the defendant was 21years old at the time of the offence.  In fact, he was nearly 22 years old at that time because he was arrested on 5 July and his birthday fell on 26 July.  In any event, he was already an adult.  The authorities also show that young age was not a mitigating factor for serious offences like trafficking in dangerous drugs. 

22.  Mr. Karbhari also pointed out that the defendant did not agree to deliver the cannabis resin for his boss, but the defendant admitted keeping and storing the drugs for him.  The prosecution does not oppose what the defendant had put forward.  However, it is clear that the same sentencing tariff still applies.

23.  The defendant trafficked in 4,333 grammes of cannabis resin.  The quantity was substantial.  I find that a starting point of 27 months’ imprisonment will be appropriate.

24.  As to the sentences to be imposed in respect of Charges 1 and 2, they can be dealt with together since the two offences were of the same nature and they were committed at the same time and place.  The total quantity of dutiable cigarettes was 154,420 sticks.  Their total value was HK$393,677.  The total duty payable was HK$294,325.

25.  In HKSAR v Wan Chi Kau [2], the appellant dealt with 164,200 sticks of dutiable cigarettes worth about a quarter of a million dollars.  He was convicted after trial.  He had 11 previous similar convictions.  He was sentenced to 15 months’ imprisonment. His appeal against sentence was dismissed.

26.  In HKSAR v Mok Chun Wing [3], the appellant pleaded guilty to two charges of dealing with dutiable cigarettes.  The first charge involved 124,400 sticks of dutiable cigarettes. The second charge involved 572,160 stick of cigarettes.  The duty avoided was $533,564.  The appellant was employed by another person to deliver the cigarettes.  Stock JA considered that the appropriate starting point for the first charge was 14 months’ imprisonment and that for the second charge was 18 months’ imprisonment.  The two sentences were ordered to run concurrently.

27.  In HKSAR v Chen Zhi-quan [4], the appellant pleaded guilty to 3 charges.  The first charge was dealing with 14,000 cigarettes otherwise than in accordance with the Dutiable Commodities Ordinance; the second was for possession of 580,420 cigarettes under the same Ordinance and the third charge was breach of condition of stay.  He admitted that the cigarettes belonged to him and that he was to carry them to another for a reward of HK$130 per day.  The total amount of tax evaded was about HK$466,658.  He was allowed to stay in Hong Kong as a visitor.  He was sentenced to imprisonment of 3 months on the first charge, 12 months for the second charge and 3 months for the third charge. All sentences to be served concurrently, making a total of 12 months’ imprisonment.  His appeal against the sentences was dismissed.

28.  Having considered these previous cases and the role played by the defendant in these two offences, I find the appropriate starting point of the prison term for Charge 1 to be 30 days’ imprisonment, and that for Charge 2 to be 12 months’ imprisonment.  The prison terms for these two sentences should run concurrently.

29.  For the offence of breach of condition of stay by taking up employment in Hong Kong, according to HKSAR v Zhang Minghua [5], the usual sentence was 2 months’ imprisonment upon a guilty plea. I see no reason not to follow.  I shall therefore adopt a starting point of 3 months’ imprisonment for Charge 4.

30.  As far as mitigating factors are concerned, the prosecution confirmed that the defendant had provided information to the police about his Chinese boss and that such information had already been passed on to the Chinese authorities. However, up till now, the Chinese boss had not been apprehended, and it was not known whether or not he would be brought to justice at a later time.  As accepted by Mr. Karbhari, the assistance provided by the defendant so far does not have any mitigating effect.  I shall not take this factor into account in reducing the defendant’s sentence.  However, if the defendant’s assistance does produce fruitful results in the future, he can always appeal against the sentence imposed today, and out of time if necessary, in light of the new mitigating factor. 

31.  I do not consider the defendant’s age a mitigating factor in light of the nature of the offences committed by him.  In any event, he was nearly 22 years old at the time of the offence, and he was a married man with at least 2 years business experience.

32.  The defendant is the sole breadwinner of his family.  When the defendant is serving his sentence in prison, his family members will suffer.  However, family hardship is not a mitigating factor for the offences committed by the defendant.     

33.  The only mitigating factors are the defendant’s guilty plea and his clear record. He is clearly entitled to be given one-third discount of his sentences.  There is however no other mitigating factor.

34.  For these reasons, the defendant is sentenced as follows:

Charge 1: 20 days’ imprisonment;

Charge 2: 8 months’ imprisonment;

Charge 3: 18 months’ imprisonment; and

Charge 4: 2 months’ imprisonment.

35.  As mentioned before, the sentences for Charges 1 and 2 shall run concurrently.

36.  The sentence for Charge 3 shall not run wholly concurrently with the sentences for Charges 1 and 2 because they involved different type of offences with different degrees of criminal culpabilities.  In theory, it is possible for this Court to order the sentence for Charge 3 to run wholly consecutively to the sentences for Charges 1 and 2.  However, this Court must also consider the question of totality.  While the overall prison term must be long enough to reflect the overall criminal culpabilities of the offences, it should not be too long to hinder the defendant’s reintegration into the society.  For this reason, I order that 6 months of the prison term for Charge 3 shall run concurrently with those for Charges 1 and 2, and the remaining 12 months shall run consecutively.

37.  As to the sentence for Charge 4, I consider that offence part and parcel of Charges 1 to 3.  Hence, I shall order that the sentence for Charge 4 to run concurrently with the sentences for Charges 1 to 3.

38.  For these reasons, the overall term of imprisonment that the defendant has to serve is 20 months.

[1] [1995] 2 HKCLR 129

[2] HCMA234/2009

[3] HCMA727/2000

[4] HCMA1003/2004

[5] HCMA547/2006