HKSAR v. AMARJIT AND ANOTHER

DCCC1217/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1217 OF 2010

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Reasons for Sentence

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1.  1st defendant, you have pleaded guilty to three charges before this court. The 1st charge was a charge of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232. The 2nd charge was a charge of possession of dangerous drugs, contrary to section 8(1)(a) & (2) of the Dangerous Drugs Ordinance. The 3rd charge was a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) & (3) of the Dangerous Drugs Ordinance.

2.  All three offences occurred on 8 September 2010 inside Room 11, 12 of the Casa Hotel in Nathan Road, Kowloon.  In respect of the possession of dangerous drugs, you had in your possession 1.37 grammes of a mixture containing 1.02 grammes of heroin hydrochloride, and 3.37 grammes of a crystalline solid containing 3.16 grammes of methamphetamine hydrochloride, those drugs being otherwise known as heroin and “ice”.  For the trafficking charge, you trafficked in 3.66 grammes of the solid containing 2.89 grammes of cocaine, 12.4 grammes were a powder containing 8.85 grammes of ketamine, and a further 1.30 grammes of a powder containing 0.27 grammes of cocaine. 

3.  For the 2nd defendant, you have pleaded guilty before me to a charge of possession of dangerous drugs.  The offence was committed also on the same date and location as that of the 1st defendant’s offences.  However, the drugs involved in your offence was 1.90 grammes of the mixture, containing 0.10 grammes of heroin hydrochloride, and 0.72 grammes of a crystalline solid containing 0.72 grammes of methamphetamine hydrochloride, again those drugs being heroin and “ice”.

4.  On 8 September 2010, at about 9.05 pm, a team of police officers were conducting anti-narcotics operations at the Casa Hotel. They saw both of you leaving Room 1112 of the Casa Hotel at around 9.15 pm. Having disclosed their identity to you both, 1st defendant, you immediately tried to escape and pushed police officer PC33232, the officer mentioned in Charge 1, away.  That officer managed to push you back into the room, and you and the officer continued to struggle, during which you, 1st defendant, punched the officer on his face and caused him to fall onto the ground.  Another police officer came to offer assistance, and you were eventually subdued.  Those are the facts related to Charge 1.

5.  In respect of the facts for Charges 2 and 4, which are the possession of dangerous drug charges for the 1st and 2nd defendant respectively, soon after you were both subdued you were searched. Upon search, 1st defendant, you were found to have one plastic bag containing five packets of heroin and one plastic bag containing a crystalline solid of “ice” in your right front trousers pocket.  D2, you were found to have in your possession one plastic bag containing the heroin and one plastic bag containing the “ice”, also in your right front jeans pocket. 

6.  In relation to the trafficking charge 3, the officers searched the Room 1112 which they saw you leaving from.  Drugs were found in a drawer of a dressing table.  There were ten plastic bags containing cocaine, which was the 3.66 grammes of the solid containing 2.89 grammes of cocaine.  There was one plastic bag containing the ketamine. There was another plastic bag containing the remainder of the cocaine as stipulated in the charge.  There was a plastic straw containing traces of heroin and an electronic balance with six pieces of white plastic sheets, five resealable plastic bags, one pair of scissors and one lighter. 

7.  1st defendant, under caution, you claimed that the drugs found on you, that is in your pocket, were for your own consumption with your friends outside.  The drugs found inside the drawer and the items in the dressing table were used for wrapping up the cocaine for consumption with your friends outside.  Under caution, D2, you remained silent.  At the time of arrest, D1, you had HK$2,251.20, whereas D2, you had HK$660 and a variety of foreign currencies totalling $242. 

8.  After examination at the Accident & Emergency of Kwai Wah Hospital, the police officer, victim in Charge 1 was found to have sustained a laceration wound over his right side of his upper lip, and there was a slight loosening of the upper incisors, but there was no broken tooth.  He was treated and discharged on the same day. 

9.  Prior to sentencing the 2nd defendant I called for a drug addiction treatment centre report.  Today is the adjourned sentence hearing.  In those circumstances the 1st defendant’s sentence was adjourned to today to deal with both defendants together.

10.  1st defendant, you are 25 years of age.  You have two previous convictions, which are both for theft, in 2007 and 2009, to which you were fined on the first occasion and imprisoned for 21 days on the second occasion. 

11.  In 2006 you entered as a visitor from India, and thereafter made a torture claim, and are now in Hong Kong as a torture claimant.  I am informed that you have been addicted to drugs for over a year and a half and are a hardened addict.  I am informed that you are remorseful for your offences committed.  You have pleaded guilty and acknowledge that your behaviour in respect to the police officer was unacceptable. 

12.  As for the 2nd defendant, you are 27 years of age and are also from India.  You have a clear record.  You entered Hong Kong in September 2006, and very shortly after that also made a torture claim and are now present in Hong Kong as a torture claimant. 

13.  I am informed by your counsel Mr Sadhwani that you 1st and 2nd defendants you are both financially supported by the International Social Services.  You receive $1,000 in cash a month, $1,000 in food coupons, and the rent to your premises is paid by them directly to the landlords. 

14.  2nd defendant, the drug addiction treatment centre report gives me a full background of yourself and your addiction history.  The report concludes that you are not suitable for admission to the drug addiction treatment centre as the medical officer is of the opinion that you are not a drug dependent.  I am informed by your counsel that you had only tried “ice” and heroin in early September, and it was out of fun and curiosity.  It is submitted that as this is your first offence you are agreeable to pay a financial penalty. 

15.  I turn now to the offences itself.  I turn first to deal with the 2nd defendant. 

16.  2nd defendant, you have a clear record.  As stated by the medical officer, you are not drug dependent as a result Mr Sadhwani has asked this court to impose a financial penalty.  Although you are of clear record, I do not consider a financial penalty to be appropriate.  As a dabbler and having curiosity and fun in taking drugs you had two different types of drugs in your possession.  The heroin amount was a fairly small quantity of 0.10 grammes however the “ice” was a slightly larger quantity of 0.72 grammes.  You are not a drug addict and are unemployed.  The only sentence I can see open to me is one of a short period of imprisonment. 

17.  2nd defendant for the offence to which you have pleaded guilty, Charge 4, possession of dangerous drugs, given the combination and quantity of drugs I consider a sentence of starting point of 9 weeks’ imprisonment had I convicted you after trial, and reduce that term to 6 weeks’ imprisonment given your guilty plea of guilty.   

18.  D1, I turn to your charges.  Charge 1, is an offence of assaulting a police officer.  For cases involving assaulting police officers deterrent sentences are appropriate.  Police officers, in the execution of their duty need to be protected.  The injuries as a result of the punch was a laceration wound over the right side of the upper lip and a slight loosening of the upper incisors. This cannot be described as very minor, but is also not the most serious of its kind.  In assessing the appropriate sentence, I consider that a starting point of a term of 9 weeks’ imprisonment had I convicted you after trial would have been appropriate.  You have pleaded guilty and thus full credit will be given for your plea.  That term is reduced to one of 6 weeks’ imprisonment on Charge 1. 

19.  Turning to Charge 2, the possession of dangerous drugs, you had a combination of two different drugs, 1.02 grammes of heroin and 3.16 grammes of “ice”.  I am fully aware that the charge is one of possession of dangerous drugs, but these amounts are not particularly small.  The facts clearly set out that you admitted that you had those drugs for your own consumption and for consumption with your friends outside.  I must take into account that you are receiving financial assistance of a small amount from the ISS and are also unemployed.  I consider there to be a latent risk of trafficking in view of the quantity of drugs that you had in your possession.  More particularly you admitted that you were going out to consume the drugs with your friends. 

20.  Although you have no previous convictions relating to drugs and more particularly none of trafficking, you had admitted that you had other drugs for trafficking.  I am informed that you are a hardened addict.  For this charge of possession of dangerous drugs, had I convicted you after trial I would have taken a starting point of 12 months’ imprisonment.  However, taking into account the latent risk factor, I consider a further term of 6 months on top of that to be appropriate, making the total term of 18 months' imprisonment.  However, giving you full credit for your plea of guilty, I reduce that term to one of 12 months’ imprisonment.

21.  I turn now to the 3rd charge of trafficking in dangerous drugs.  In that charge the total cocaine that is in the 11 packets, was 3.16 grammes, and the total ketamine was 8.85 grammes.  There are clear tariff guidelines laid down for trafficking in cocaine and ketamine.  For cocaine, the guideline is laid down in the case of Lau Tak Ming given the quantity you had for trafficking, that falls within the first bracket of up to 10 grammes of narcotic, which an appropriate sentence starting point would be 2 to 5 years’ imprisonment.  Given the quantity you had for trafficking, I consider a starting point of 3 years' imprisonment to be appropriate after trial.

22.  For the ketamine drugs, the tariff guidelines are laid down in The Secretary for Justice v Hii Siew Cheng and the guidelines for over 1 gramme to 10 grammes is a starting point of 2 to 4 years’ imprisonment.  For the amount of drugs in this case, I consider a starting point of 3½ years’ imprisonment as a starting point after trial.

23.  In this trafficking of dangerous drugs charge you have a combination of drugs.  The case of HKSAR v Cheng Yat Ming, CACC455/2010, lays down guidelines for the courts in sentencing for a combination of different drugs.  There are individual approaches to be taken or combination approaches.  I take into account the fact that the drugs are heavy drugs.  If the total of these two drugs were to be added together, that would give a sentence of 6½ years' imprisonment, whether on an individual approach or a combination approach.  However, I must take into account an overall fair starting point, and in so doing for these two types of drugs I take an overall starting point of 6 years' imprisonment.  You have, however, pleaded guilty, and your sentence shall reflect a full discount of one-third.  And for Charge 3 you will be sentenced to 48 months' imprisonment, which is 4 years' imprisonment. 

24.  1^st Defendant you have pleaded guilty to three charges before me.  I must look at the totality principle in sentencing you for these three offences.  In so doing I order one week of Charge 1 to run consecutive to Charge 3, 4 months of Charge 2 to run consecutive to Charge 3.  So that would, in total, make a term of 52 months and 7 days, or otherwise your total term is 4 years 4 months and 7 days’ imprisonment.