HKSAR v. GURDEEP SINGH

DCCC 828/2021

[2023] HKDC 1062

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 828 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant faces four charges. Charge 1 is trafficking in a dangerous drug, Charge 2 is using a false instrument, Charge 3 is knowingly misleading a police officer by giving false information, and Charge 4 is conspiracy to traffic in a dangerous drug.

2.  The defendant is convicted upon his own plea on Charge 2 and Charge 3.

3.  On Charge 1, the defendant pleads guilty to mere possession but not trafficking. That is not accepted by the prosecution.

4.  On Charge 4, the defendant pleads not guilty.

5.  After trial, the defendant is also convicted of Charge 1 and Charge 4.

Case Summary

6.  The defendant is a Form 8 recognisance holder. He came to Hong Kong in 2005 and has been seeking asylum since then.

7.  At about 10:20 pm on 6 January 2021, police officers stopped the defendant at 237–239 To Kwa Wan Road as he was entering I-Feng Mansions there with another man. The defendant was not a resident of the building.

8.  When being asked of his identity document, the defendant threw a bag onto the ground. It was recovered by the police and found to be 6.38 grammes of a crystalline solid containing 6.18 grammes of methamphetamine hydrochloride, commonly called ‘Ice’.

9.  The estimated street value of the ‘Ice’ found was HK$3,388.

10.  At the scene, the defendant produced to the police a recognisance document, Form 8. It bore a false name of Sandeep Singh (Charge 2). The defendant is actually called Gurdeep Singh but he represented himself to be Sandeep Singh to the police officer handling him (Charge 3).

11.  The defendant was tested positive for amphetamine and opiates on 10 January 2021 while in custody. However, I conclude after trial that he had that bag of ‘Ice’ not for his own use but for the purpose of trafficking (Charge 1).

12.  The defendant had two mobile phones (one black, one red)  with him. From the black mobile phone, the police extracted two photos and 49 voice messages under one contact number (9419 xxxx). Those voice messages were made between that number and the black phone on

13.  After trial, I find the defendant in messages 7-10, made on

Record

14.  The defendant is now aged 40. He is an asylum seeker in Hong Kong. He was born in India but came to Hong Kong in 2005. Between 2009 and 2021, he has accrued 18 convictions. They were mostly theft offences but there were also convictions of possession of dangerous drugs in 2010 and 2021, smoking/injecting dangerous drugs in 2015, and obstructing police in 2013. The defendant’s last conviction for possession of dangerous drugs was on 25 January 2021, some two weeks after the current offences. Defence counsel says the defendant was on bail for that possession of dangerous drugs offence when he was arrested in the present case on 6 January 2021.

Mitigation

15.  Defence counsel says the defendant came to Hong Kong in 2005 and applied for asylum subsequently. Before his arrest, he had been living with an Indonesian lady, who was also an asylum seeker.

16.  On Charge 1, counsel submits the starting point for trafficking in 6.18 grammes of ‘Ice’ should be 51.9 months or 4 years and 3 months’ imprisonment. He divides 84 months (the maximum for trafficking in up to 10 grammes of ‘Ice’)  by 10 grammes, thus arriving at 8.4 months’ imprisonment for each gramme of ‘Ice’.

17.  Counsel agrees the defendant was a Form 8 recognisance holder when he committed Charge 1, which was a serious offence affecting the community. For that, the sentence can be enhanced by 4 months.

18.  In conclusion, counsel is suggesting a term of about 55 months’ imprisonment or 4 years 7 months for Charge 1.

19.  On Charge 2 and Charge 3, counsel makes no suggestion of the starting points. Nevertheless, he submits the sentence for these two counts should be concurrent. He even says these two terms should also be concurrent with the sentence for Charge 1.

20.  On Charge 4, counsel submits that trafficking in up to 2,000 grammes of cannabis resin only attracts a maximum of 16 months’ imprisonment. He says for the defendant’s conspiring to traffic in 20 grammes of cannabis resin, the sentence would be only 1 month’s imprisonment. He points out that a mathematical calculation for 20 grammes of cannabis resin is merely 4.8 days’ imprisonment.

21.  Finally, counsel asks the court to consider the appropriate totality of the sentences for all the four charges.

Sentence

22.  Defence counsel’s calculation for Charge 1 is apparently flawed because it means someone trafficking in 1 gramme of ‘Ice’ only gets 8.4 months’ imprisonment or 16.8 months for 2 grammes, and so on.

23.  The tariff for trafficking in up to 10 grammes of ‘Ice’ is 3 to 7 years’ imprisonment.

24.  It has been said that trafficking in a really small quantity of ‘Ice’ would not attract the minimum sentence of 3 years.

25.  The Court of Appeal however has not stated what is the required quantity for a starting point of 3 years’ imprisonment. However, assistance can be gained from the ketamine trafficking tariff where the Court of Appeal designates 1 gramme as the demarcation line.

26.  I would think the same should be applied to the ‘Ice’ trafficking scenario. If one traffics in 1 gramme of ‘Ice’, a starting point of 3 years’ imprisonment will be justified. On this premise, the defendant trafficking in 6.18 grammes of ‘Ice’ should attract a basic starting point of 63.6 months’ imprisonment.

27.  The defendant is a Form 8 recognisance holder and he committed a serious trafficking crime, which would affect the community. The basic 63 months starting point should therefore be enhanced by 4 months to 67 months.

Charge 4

28.  Charge 4 is a conspiracy between the defendant and another person to sell 20 grammes of cannabis resin to a third party.

29.  Trafficking in cannabis carries a much lower sentence. Under 2,000 grammes of cannabis resin, the maximum would be 16 months’ imprisonment (AG v Tuen Shui Ming and Another [1995] 2 HKC 798).

30.  20 grammes is a small quantity as far as cannabis resin is concerned. However, in paragraph 99 of HKSAR v Nguyen Thang Loi [2023] HKCA 103, the Court of Appeal repeats what the Australian court has said in R v Yavuz and Others [2018] 130 SASR 231:

“… trafficking in small quantities of the drug is widespread among a large population of generally law abiding people. There are significant social costs in stigmatising these individuals as drug traffickers. The need to minimise the harms resulting from enforcement of prohibitions against trafficking is particularly compelling when minor criminality involving cannabis is in question.

Though realistic distinctions between major and minor dealers are essential, quantitative measures of guilt provide a very rough guide indeed to the level of criminality of cannabis dealers. …”

31.  In other words, trafficking in cannabis, even for a small quantity, is a crime that should nevertheless be deemed as serious and any set tariff is not to be applied just mathematically.

32.  I shall adopt 4 months’ imprisonment as the basic starting point for Charge 4, which will be enhanced by a month to 5 months since the defendant is a Form 8 recognisance holder committing a serious crime affecting the community at large.

Charge 2 and Charge 3

33.  The defendant tried to obscure his identity when being investigated by the police. He tendered to the police officer a false identity document bearing another’s name.

34.  The starting point for Charge 2 should be one of 15 months’ imprisonment.

35.  The defendant pleads guilty to Charge 2 in good time. He is entitled to a one-third discount. The sentence for Charge 2 will then be 10 months’ imprisonment.

36.  Charge 3 is part and parcel of the defendant’s obscuring identity exercise.

37.  The maximum provided for Charge 3 is only 6 months’ imprisonment. I would adopt 3 months as the starting point for this charge. After one-third discount for the defendant’s plea, he is given 2 months’ imprisonment for Charge 3.

Totality

38.  Charge 2 and Charge 3 are related. These two terms of imprisonment should run concurrently.

39.  Charge 1 and Charge 4 are separate and distinct offences. These two terms, in theory, should run consecutively.

40.  However, I have to consider the totality of all the sentences. For that, I shall order 5 months of the concurrent terms for Charge 2 and Charge 3 to run consecutively to the 67 months for Charge 1, and 3 months in Charge 4 to run consecutively to the sentences for Charge 1, Charge 2 and Charge 3. The defendant thus has to go to prison for a total of 75 months or 6 years and 3 months for all the four charges.