HKSAR v. SUSILO

DCCC 1055/2021

[2023] HKDC 869

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1055 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant SUSILO (D)  pleaded guilty before me to 1 count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134. Particulars of Offence stated that on 2 August 2021, at Shek Tin Road, Kam Tin, he unlawfully trafficked in dangerous drugs, namely 1.86 grammes of cannabis in herbal form and 5.41 grammes of a solid containing 4.80 grammes of cocaine.

2.  The facts of the case are simple and straightforward. At around 13:10 hours on 2 August 2021, D was riding a bicycle in the lane opposite to lamppost VG2486, Shek Tin Road, Kam Tin, New Territories when he was intercepted by an officer from the Customs & Excise Department. A body search was conducted on D during which the following items were found on him:

a. 2 plastic bags containing at total of 1.86 grammes of cannabis in herbal form;

b. 35 plastic bags containing a total of 5.41 grammes of a solid containing 4.80 grammes of cocaine;

c. cash HK$6,616;

d. a mobile phone with 2 SIM cards and an SD memory card; and

e. a Form 8 of D.

3.  The narcotic contents of the dangerous drugs found on D were subsequently confirmed by the Government Chemist. The estimated street value of the cannabis was HK$351.5 and HK$6,210.6 for the cocaine.

4.  D now admits he was in possession of the dangerous drugs concerned for trafficking.

Defendant’s Backgrounds and Mitigation

5.  D is 29 years old, born in Indonesia on 14 October 1993. He worked as an odd job worker and was engaged with his then girlfriend before coming to Hong Kong. He has a clear criminal record. Urine sample taken from him 2 days after his arrest indicated positive result to cannabinoids. The Form 8 found on him was issued by the Immigration Department on 21 August 2020.

6.  Mr. Hingorani representing D submitted in mitigation that D came to Hong Kong to join his friends. He was given a 1 month stay when he landed but he overstayed and subsequently surrendered to the police. He was prohibited from working in Hong Kong. He was subsidized financially, and lived in Yuen Long in accommodation provided, by ISS. He had a girlfriend in Hong Kong who worked as a domestic helper. She also supported him financially. D purchased the dangerous drugs using his girlfriend’s money with a view to selling them and making money. Mr. Hingorani also submitted a letter written by D in which D stated that he needed money to pay for the medical expenses of his ailing mother in Indonesia. D also expressed remorse in the letter and promised not to re-offend after serving out his sentence.

Sentence

7.  This case involved 2 types of narcotics, viz., cocaine and herbal cannabis. The quantity of herbal cannabis involved is 1.86 grammes, a very small quantity which would normally be met with a fine if stood alone. I will ignore it in considering the sentence in this case.

8.  It is well established that the starting point for trafficking in up to 10 grammes of cocaine attracts a sentence of 2 to 5 years imprisonment if convicted after trial[1].

9.  I bear in mind the comments by the CA in HKSAR v Chan Yuk Leong[2] that tariffs are not to be applied on a linear scale and that the court should not slavishly applying a strictly mathematical approach.

10.  This case involved trafficking in 4.80 grammes of cocaine. I adopt 36 months as the starting point.

11.  D admitted that he purchased the cocaine to resell them for profit. In HKSAR v Godson Ugochukwu Okoro[3], the CA stated that sentencing guidelines were specifically directed to a courier or storekeeper. It could be adjusted upwards for an actual trafficker, as D in this case. Also, being a Form 8 recognizance holder is an aggravating factor[4]. For these aggravating factors I will increase the starting point by 3 months and 6 months respectively, increasing the sentence to 45 months.

12.  Time and again the CA had stated that “Trafficking in dangerous drugs” is a very serious offence so that general deterrence takes precedent. The general background of D carries very little weight. In any event, since this is the first offence D has committed, I will exercise my discretion to reduce the sentence by 3 months to 42 months.

13.  In July 2022 D indicated his not guilty plea in the District Court and the case was set down for trial in February 2023. Due to the indisposition of defence counsel for COVID it was further adjourned to 20 June 2023 before me for trial. The Court received notification on 19 June 2023 that D had changed his mind and had on 13 June 2023 confirmed his intention to plead guilty to the Charge. Under such circumstances, he is entitled to a discount between 20% to 25%[5]. In the circumstances of this case I will reduce the sentence by 10 months, which is just under 24%, to 32 months. There is no other mitigating factor warranting any further discount.

14.  For the reasons set out above, for the Charge D has pleaded guilty to, he is sentenced to 32 months imprisonment.