HKSAR v. SINGH CHANDAN KUMAR

DCCC 151/2018

[2018] HKDC 1232

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 151 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea to a charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars of offence was that the defendant had unlawfully trafficked in a dangerous drug, namely 14,612 grammes of cannabis resin.

Agreed facts

2.  According to the Summary of Facts as agreed on 20 September 2017, the defendant was intercepted at Customs Arrival Hall A, Hong Kong International Airport, after his arrival in Hong Kong. 

3.  He had a suitcase with him at the time.  He admitted the same was his.  The suitcase was then searched and there were 130 boxes inside which were packaged as “chicken masala” and “jaljira powder”.  Some brown paste was found inside some of the boxes.  When asked what it was, the defendant said he did not know but his friend had given it to him at the Indian airport.

4.  A preliminary narcotics indicated that the substance inside the boxes was cannabis.  The defendant was arrested and stated under caution that his friend had given him the boxes in the Indian airport and it was his first time.

5.  88 out of the 130 boxes in the defendant’s suitcases were found to contain a total of 14,612 grammes of cannabis resin, as subsequently confirmed by the Government Chemist.

6.  The estimated value of the drugs seized was HK$1,242,020.

7.  The defendant also had one mobile, cash of $6.2 and 2,223 Indian Rupees on him at the time.

8.  With the assistance of a Hindi interpreter at a video-recorded interview, the defendant admitted the following:-

(a) He had come to Hong Kong to get iPhones which he would bring back to India for sale;

(b) He was approached by a man at the Indian airport. The man offered him some money for bringing the suitcase to Hong Kong. The man also said there would be someone at the airport who will collect the suitcase from him;

(c) He agreed to bring the suitcase to Hong Kong as he was going to Hong Kong anyway and the suitcase contained some boxes. The man opened some of the boxes which contained spice and the defendant tasted it and confirmed it was spice; and

(d) The defendant was then approached by an unknown person on the plane who said he would take the suitcase, but the defendant felt suspicious and refused.

9.  The defendant now admits and accepts that at all material times he knowingly imported the drugs seized into Hong Kong.

Criminal record

10.  The defendant has a clear record in Hong Kong. 

Mitigation

11.  It was mitigated on his behalf that he is a visitor to Hong Kong from India. 

12.  He is aged 24, single and lived with his parents in India.

13.  Prior to his trip to Hong Kong, he worked as a garment salesman earning $1,100 per month and he contributes about 30 to 40% of his income to his parents.

14.  It is said also that he does have a clear record both in Hong Kong and India.

15.  It is submitted that the defendant committed the present offence because he wanted to earn some easy money as the man who approached him offered him a reward for taking the drugs to Hong Kong and that he acted as a courier.

16.  It is said that the defendant is now deeply remorseful as to what he has done, that he has let his family down because of the commission of this offence.

17.  Defence counsel said the cannabis resin in this case is nearly 15 kilogrammes and that according to the sentencing tariff in the Court of Appeal case of Tuen Shui Ming CAAR 12/1994, sentence in cases where the cannabis resin trafficked was of 9 kg and over, the sentencing starting point should be about 4 years’ imprisonment.

18.  It is conceded by defence counsel that as the defendant brought the drugs into Hong Kong, this is an aggravating factor and the sentencing starting point will be enhanced. 

19.  He urged this court that as the defendant has a timely plea that he should be entitled to the full one-third sentencing discount. 

20.  He drew the attention of this court also to the cases of HKSAR v Masoom Parvez, CACC 85/2015, and HKSAR v Gurung Saraj, CACC 225/2014.  He asked this court to adopt a sentencing starting point of 4 years and 9 months to 5 years. 

21.  In the Masoom Parvez case, the cannabis resin involved in the drug trafficking is 11.94 kg.  The facts of the case is similar to our case here.  The applicant in that case was intercepted by the customs officer in the airport.  In that case, the court affirmed the sentencing starting point of 4 years and 6 months for the quantity of cannabis resin and enhanced the sentence by 3 months for the international element involved, thus resulting in a notional sentence after trial of 4 years and 9 months.

22.  In the Masoom Parvez case, the Court of Appeal case of HKSAR v Sherpa Chhewan Gyabu, unrep., CACC 220/1998 was considered.  In that case, the Court of Appeal considered 5 years’ imprisonment as the appropriate starting point for trafficking 13 kg of cannabis resin.

23.  In the Gurung Saraj case, the defendant was the recipient of parcels from India containing 15.2 kg of cannabis resin. The Court of Appeal affirmed the sentencing starting point of 5 years’ imprisonment after trial.

24.  It is said because of the plea of the defendant, he is entitled to the full one-third sentencing discount and that all the things said about his clear record and past good character are all subsumed within the one-third discount.

Discussion

25.  In the Court of Appeal case of AG v Tuen Shui Ming [1995] 2 HKC 798, the Court of Appeal recast the guidelines in Chan Chi Man, [1987] HKLR 221, for trafficking in cannabis resin.  Power VP in the last paragraph of his judgment recast the guideline and the suggested tariff for possession of cannabis resin for the purpose of unlawful trafficking of over 9 kilogrammes is 4 years upwards.

26.  The drugs in our case here is 14.6 kg.

27.  Considering the circumstances of the case here, which is similar to that of the defendant in the Masoom Parvez case. The amount of drugs here is substantially more.  The culpability of the defendant in the present case is no less than that of the defendant in the case of Sherpa Chhewan Gyabu case. 

28.  This court will adopt a notional sentencing starting point of 4 years and 9 months for trafficking in this amount of cannabis resin.  The sentence starting point is further enhanced by 3 months because of the international element bringing the sentence starting point to 5 years as the defendant is the one who actually physically brought the drugs into Hong Kong which is an aggravating factor.

29.  This court has considered all mitigation advanced by defence counsel and consider the most valid mitigating ground is that of his timely plea of which he is entitled to the full one-third discount.

30.  Accordingly, the defendant is sentenced to 3 years and 4 months imprisonment for the present offence.