HKSAR v. NISHANKA APPUHAMILAGE THISARA AND ANOTHER

DCCC 234/2018

[2018] HKDC 1476

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 234 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is charged with one count of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. This morning, he pleaded guilty to the charge. The facts which he admitted are as follows.

2.  On 8 December 2017, the police mounted an anti-dangerous drugs operation at No 138-140 of Queen’s Road West.  At around 6:30 that day, a Sri Lankan gentleman by the name of Bandara was seen opening the door of Unit C, the 5th Floor of the building situated at No 138-140 Queen’s Road West.  

3.  Bandara was intercepted and a house search was then conducted at Unit C.  The unit has a total of three bedrooms.  One is used by Bandara and his wife and another one was used by the defendant.

4.  In the course of the search, the defendant was found lying in his room. And the following items were found in his room by the police.  This included, among others, a safe which is black in colour with fingerprint lock.  When the defendant unlocked it with his right thumb, a black colour nylon bag with one transparent plastic bag containing suspected cocaine, two iron spoons and three keys, one of the keys could open the defendant’s room.  The bag of suspected cocaine was later marked as Exhibit E2. 

5.  On the top of the safe mentioned earlier, two keys were found, one of which could open the main entrance of Unit C, whereas the other one could open the main gate of the building. 

6.  In the defendant’s room, the police also found a plastic box in beige colour, inside which a transparent plastic bag containing suspected cannabis and another transparent resealable plastic bag containing 75 transparent resealable plastic bags.

7.  On top of these, the police also found in the room one digital scale, over 400 small transparent resealable plastic bags, a total of 967 empty capsules all contained inside a plastic bag, a brown colour paper box, cash, HKD$1,410, 200 RMBs, a wallet, brown in colour, and three mobile phones. The bag of suspected cannabis was later marked as Exhibit E3. 

8.  The defendant was then arrested by the police.  According to Bandara, he came to know the defendant in August 2017.  In October 2017, the defendant asked Bandara to let him one of the bedrooms.  Bandara agreed and the room was let to the defendant at a monthly rate of $4,000.  Bandara noticed that the defendant, after he moved in, always kept his room closed.

9.  Exhibit E2 and E3 were later sent to the Government Chemist for examination.  According to the chemist certificate before me, Exhibit 2 was found to be a plastic bag containing 29.1 grammes of a solid containing 16 grammes of cocaine, whereas Exhibit E3 is found to contain 12.8 grammes of herbal cannabis.

10.  The retail value of Exhibit E2, that is the 16 grammes of cocaine, was estimated to be at around $33,900-odd. 

Mitigation

11.  The defendant is 35 years old.  He was born in Sri Lanka. According to Mr Parry who appears for him this morning, the defendant has two older brothers who are still living back in the country. And I was told that the defendant left school after finishing only junior high.

12.  Now, on what is before me, it is not entirely clear when the defendant first came to Hong Kong.  What we do know is that after coming here, he was charged with and convicted of the offence of unlawfully remaining in Hong Kong and an offence of robbery in 2008 for which he was sentenced to a total term of 47 months’ imprisonment.

13.  And we also know that the defendant is an asylum seeking, a Form 8 recognizance holder, as Mr Parry calls it.  He was, in fact, on recognizance from the Director of Immigration at the time of the offence. I was further told that at the time of the offence, he was unemployed. 

14.  Now, in his well-prepared mitigation, apart from asking the court for the full one-third discount for the defendant’s timely plea, Mr Parry also asked for a further discount on the basis that about a quarter of both the cocaine and the cannabis were for the defendant’s own consumption.

15.  Purportedly in support of that claim, Mr Parry handed up to me a copy of the psychiatric report prepared for the defendant by Dr Leung Kwan Keung.  Dr Leung is a visiting psychiatrist at the Siu Lam Psychiatric Centre where the defendant was remanded at one stage.  Dr Lam had not seen the defendant himself and does not seem to be the treating psychiatrist.  He prepared the report by looking up the case records kept. 

16.  According to the report, the defendant had told the doctors that he "drink four to five litres of whisky per week," and used 4 to 10 grammes of cocaine daily.  Apart from cocaine, the defendant also reported to have used amphetamine once every one to two weeks. And he said he was taking one to two joints of cannabis every week as well.

17.  The defendant further told the psychiatrist at Sin Lam that he did not have to pay for the drugs as he was able to get the cocaine from his friends. His last use of illicit drugs, according to these records, was said to be on 8 December 2017, ie, the day of the offence.

18.  The impression the psychiatrist at Siu Lam had was that the defendant may have suffered from polysubstance abuse with a history of drug-induced psychosis. 

19.  However, as Mr Parry accepted, the consumption rate given by the defendant to the psychiatrist for the subsfences that defendant talked about, be it whisky or cocaine, is all wrong.  If the defendant had been using cocaine at the rate he suggested, he would have been a living corpse by now.

20.  I think, on what is before me, it is also very clear that the defendant was not getting cocaine free, cocaine being a highly valuable dangerous drug. I have great difficulty in imagining how his friends could have been supplying these for free to him.

21.  Moreover, when asked by the court, Mr Parry handed up a copy of the result of the urine test administered on the defendant upon his admission to Siu Lam.  The test result indicates that he was tested negative of, among others, cocaine, cannabis and ‘Ice’.  That being the case, the claim by the defendant for self-consumption remains from beginning to end nothing more than a bald assertion.

22.  In my view, whilst the defendant may well have been a substance abuser at some stage, there is nothing before the court to show that any portion of the cocaine or the cannabis found, let alone a substantial portion, was for his own consumption.  The plea for an additional discount on that basis is, therefore, rejected.

23.  On the other hand, it is accepted by Mr Parry that by reason of the defendant’s status in Hong Kong, namely, being an asylum seeker who was admitted on his recognizance to stay in the community whilst waiting for a result, the court is obliged to consider enhancing the starting point. 

24.  In the case of HKSAR v Ali Saif CACC 309/2017, the applicant, who was also an asylum seeker, was convicted in the High Court of trafficking in dangerous drugs.  The drugs in question in that case was 121 grammes of cocaine. In sentencing, the trial judge enhanced the starting point by one year to take the defendant’s status into account.  On appeal, the Court of Appeal considered the enhancement to be perfectly proper.  As observed by Mr Justice Macrae who gave the judgment for the Court of Appeal:-

“However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or the High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

25.  As conceded by Mr Parry, by reason of what I have just read, the only question left is by how much the starting point should be enhanced.  This, I shall come back to shortly.

Starting point

26.  It is, of course, accepted that in considering the starting point for trafficking in cocaine, this court has to bear in mind the guidelines set down in R v Lau Tak Ming [1990] 2 HKLR 370, which was made applicable for cocaine trafficking in the Attorney General v Pedro Nel Rojas, CAAR 15/1993.

27.  With 16 grammes of cocaine being trafficked, the case here falls within the bracket of 10 to 50 grammes for which the starting point should be one of 5 to 8 years’ imprisonment.  Approaching it arithmetically, I believe the starting point of 5 years and 5 months, ie, 65 months, is appropriate.

28.  As for the cannabis, if the court were to take an individual approach, I would have adopted a starting point of 3 months’ imprisonment.  In arriving at that figure, I have considered, among others, the case of R v Tuen Shui Ming and Another, CAAR 12/1994.  In that case, the Court of Appeal reset the tariff for trafficking in cannabis so that the starting point for trafficking in anything up to 2,000 grammes of cannabis resin is now anything up to 16 months’ imprisonment. At the same time, however, the Court of Appeal added that:-

“Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

29.  However, instead of adopting an individual approach, it is clear, in my view, that the combined approach is the one which should have been adopted in this case.  And with that in mind, this court will use the starting point for the cocaine involved, that is 5 years and 5 months, as the starting point.  To that, I shall add one month for the cannabis making a total of 66 months.

30.  For the fact that the defendant had committed the present offence whilst on recognizance from the Director of Immigration, I shall enhance the starting point by an extra 6 months, making, therefore, a global starting point of 72 months.

31.  For the defendant’s guilty plea, he will have, of course, the full one-third discount.  This will reduce the sentence to 48 months. 

32.  On top of that, there are, in the present case, circumstances which would have justified a more lenient view to be taken.  Without going into these here, I shall give a further discount of 9 months.

33.  The sentence which the defendant is to serve is thus one of 39 months’ of imprisonment. 

34.  By reason of the matters I have said, the defendant is formally sentenced to 3 years and 3 months’ imprisonment.