HKSAR v. JAGTAR, SINGH

HCMA 339/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 339 OF 2016

(ON APPEAL FROM KCCC NO 1154 OF 2016)

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J U D G M E N T

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1.  The appellant, Mr Jagtar Singh, was the defendant in KCCC 1154/2016. He faced three charges, 1^st charge, possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.

2.  2^nd and the 3^rd charge, possession of an identity card relating to another person, contrary to Section 4A(1)(a) of the Registration of Persons Ordinance, Cap 177, Laws of Hong Kong.

3.  The appellant pleaded guilty for the 1^st charge, he pleaded not guilty to the 2^nd and 3^rd charge.  He was found guilty after trial on the 2^nd and the 3^rd charge. 

4.  For the 1^st charge, the Magistrate sentenced the appellant to 2 weeks’ imprisonment.  For the 2^nd and the 3^rd charge, the Magistrate sentenced the appellant to 18 months’ imprisonment for each offence. 

5.  The Magistrate ordered that the sentences imposed for the 2^nd and the 3^rd charge to run concurrently, and 1 week of the 1^st charge to run consecutively to the sentences for the 2^nd and the 3^rd charge.  The total sentence is 18 months and 1 week’s imprisonment. 

6.  The appellant appeals against his sentence. 

7.  According to the facts as admitted by the appellant for the 1st charge and the facts as found by the Magistrate in respect of the 2^nd and the 3^rd charge, the appellant was stopped and searched by a team of police officers at the rear lane of Chungking Mansion, Tsim Sha Tsui, at about 9:23am on 24 October 2015.  The police officers found upon search a packet containing 0.05 gramme of a mixture containing heroin hydrochloride inside a cigarette box belonging to the appellant.  The appellant than dropped his backpack and fled towards the direction of Nathan Road.  Eventually, the appellant was intercepted by the officers outside 36 to 50 of Lock Road.  The officers inspected the backpack dropped by the appellant and found two identity cards belonging to other persons hidden inside the left strap of the backpack. 

8.  The appellant had a clear record.  He is a non-refoulement claimant.  He came to Hong Kong from India in February 2015. At the time of the offence, he was living on financial subsidy from ISS. 

9.  In sentencing the appellant for Charge 2 and 3, the Magistrate noted the sentencing tariff set down by the Court of Appeal in HKSAR v Li Chang Li (HCMA 935/2004):

“In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.”[1]

10.  The Magistrate adopted 18 months’ imprisonment as the starting point for the 2^nd and the 3^rd charge, as he saw no justification to depart from the tariff.  He considered the mitigation advanced on behalf of the appellant, he found that there was no mitigating factor that warranted any reduction in the sentence.  In the result, the Magistrate sentenced the appellant to 18 months’ imprisonment for Charge 2 and Charge 3. 

11.  As for the 1^st charge, the Magistrate noted that the quantity of the heroin in question was minute, and the appellant showed his remorse through his guilty plea.  The Magistrate considered that given the length of sentences imposed on Charge 2 and 3, it was unnecessary to adjourn the sentence of Charge 1 for a Drug Addiction Treatment Centre report.

12.  For the 1^st charge, the Magistrate took a starting point of 3 weeks’ imprisonment, and reduced the sentence to 2 weeks’ imprisonment given the guilty plea of the appellant.  The Magistrate considered the totality principle. He ordered the sentence imposed for the 2^nd and the 3^rd charge to run concurrently with each other.  He ordered 1 week of the 1^st charge to run consecutively to the sentences for the 2^nd and the 3^rd charge.  In the end result, the appellant was sentenced to a total term of 18 months and 1 week’s imprisonment. 

13.  The appellant was legally represented in the court below, but he is not represented in his appeal before me today.  The appellant tells me he came to Hong Kong on 2 February 2015.  On the day in question, two police officers and one woman police officer intercepted him. The officers asked the appellant to show them his identity card.  The appellant showed the officers his non-refoulement claim papers.  The officers searched the appellant and found the dangerous drugs in question.  The appellant says no identity card was ever found by the police officers. 

14.  The appellant says he respects the laws in Hong Kong.  He asks the court to pass the most appropriate sentences on him for the offences in question. 

15.  The respondent submits in reply to the appellant’s submissions that the Magistrate had properly considered the tariff as set down in Li Chang Li.  The starting point of 18 months taken by the Magistrate for the 2^nd and the 3^rd charge cannot be faulted.  The Magistrate was fair to order both sentences to run concurrently with each other.  In respect of the 1^st charge, the Magistrate took a starting point of 3 weeks’ imprisonment.  The respondent submits that the quantity of the drugs in question was minute.  The respondent cites HKSAR v Ramirez [2015] 1 HKLRD 966 for the proposition that the starting point for possession of minute amounts of dangerous drugs is 9 months’ imprisonment.  In the present case, the Magistrate should have taken 9 months’ imprisonment for the 1^st charge and sentenced the appellant to 6 months’ imprisonment in the light of his guilty plea, hence the appellant should consider himself lucky that he was given only 2 weeks’ imprisonment for the 1^st charge.  As the 2^nd and the 3^rd charge are clearly of a different nature and purpose to the 1st charge, the appellant should also consider himself lucky that the Magistrate only ordered 1 week’s imprisonment of the 1^st charge to run consecutively to the sentences for the 2^nd and the 3^rd charge. 

16.  The respondent submits that the sentence of 18 months and 1 week is not wrong and should not be interfered with.  The respondent submits that given the fact that the appellant was not represented at his appeal proceedings, he might not appreciate the sentence passed by the Magistrate on Charge 1 is unduly lenient.  The respondent is not seeking for an increase for the sentence in the 1^st charge. 

17.  I have considered the submissions made by the appellant and the reply submissions made by the respondent.  Much of the appellant’s submissions concerned his complaint that he was wrongly convicted for the offence.  In short, the police found the drugs on him but not the identity cards.  But the appellant only appeals against his sentence, not his conviction.  I am only concerned with the correctness or otherwise of the sentences passed by the Magistrate for the three charges in question. 

18.  The 18 months starting point taken by the Magistrate for the 2^nd and the 3^rd charge is correct. The appellant pleaded not guilty to the charge.  The starting point should be one of 18 months’ imprisonment according to the tariff set down by the Court of Appeal in Li Chang Li.  There was no reason for the Magistrate to depart from the aforesaid starting point.  The appellant pleaded not guilty to the 2^nd and the 3^rd charge and was convicted after a full trial.  The Magistrate was right to say there was no mitigating factor that warranted any reduction in the sentence.  The sentences that the Magistrate passed in the 2^nd and the 3^rd charge are proper and correct, and should not be interfered with.  As for the 2 weeks’ imprisonment that the appellant received for the 1^st charge, as rightly pointed out by the respondent the appellant should consider himself lucky that the Magistrate imposed only a sentence of 2 weeks’ imprisonment.  As one can see from the case Ramirez, the starting point for possession of minute quantities of dangerous drugs should be 9 months’ imprisonment.  The appellant pleaded guilty to the 1^st charge, the Magistrate should have sentenced the appellant to 6 months’ imprisonment for the 1^st charge.  As the respondent is not seeking an increase for the sentence in the 1^st charge, I would not interfere with what is otherwise a very, and I would even say, unduly lenient sentence imposed by the Magistrate on Charge 1.

19.  The overall sentence of 18 months and 1 week is not wrong, and should not be interfered with on appeal.  For the reasons given, the appeal against sentence is dismissed.