HKSAR v. MATTU PARGAT SINGH

DCCC 152/2021

[2021] HKDC 1652

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 152 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant, a Form 8 holder from India, pleads guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The subject dangerous drugs are 80 tablets containing 8.37 grammes of 3,4-methylenedioxymethamphetamine (ecstasy).

Facts

3.  At around 10:15 pm on 25 October 2020, a police officer observed the defendant walking out of Carnarvon Mansion, Nos 8-12 Carnarvon Road, Tsim Sha Tsui, Kowloon but upon seeing the police, he immediately turned around and returned to Carnarvon Mansion.  The defendant ran and the police officer chased after him.  At an area outside a washroom which was a dead end, the defendant threw onto a concrete structure outside the washroom a transparent plastic bag which was later found to be containing 8 plastic bags containing a total of 80 purple tablets containing 8.37 grammes of ecstasy.

4.  The defendant was arrested.  Two mobile phones were seized from him. The defendant was not cautioned at the scene due to language barrier.

5.  In a subsequent recorded interview, the defendant remained silent.

6.  At the material time, the defendant was in possession of the dangerous drugs seized for the purpose of unlawful trafficking.

7.  The estimated market value of the tablets seized was about HK$4,080.

Criminal record

8.  The defendant has a clear record. 

The defendant’s background and mitigation

9.  Counsel for the defendant told the court that the defendant is aged 30, married with one 11-year-old son in India, came to Hong Kong in 2015 to seek asylum.  He is educated up to Primary 5.  Before coming to Hong Kong, he had held various jobs including that of a dance trainer.  He had no criminal record in either India or Hong Kong.

10.  Counsel submitted that the defendant’s expression of remorse together with his plea of guilty at the earliest opportunity warrants the usual one-third discount.

11.  Counsel cited several cases and made submissions on what he considered to be the appropriate sentence for the charge.

Consideration

12.  In sentencing the defendant, I have borne in mind the facts of the case, the background information of the defendant and all the matters urged on the defendant’s behalf by his counsel.

13.  In Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 325, the Court of Appeal laid down guidelines for trafficking in ketamine and ecstasy. Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years.

14.  I am satisfied the correct starting point after trial for 8.37 grammes of ecstasy is 43 months’ imprisonment, as calculated by Counsel.

Form 8 holder

15.  The defendant is a Form 8 recognizance holder.  As Counsel rightly submitted, the commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security (HKSAR v Ali Saif [2018] 6 HKC 19(CA)).

16.  I am satisfied trafficking in dangerous drugs affects the community at large and have a significant impact on Hong Kong’s reputation for order and security.  In my view, an enhancement of 5 months’ imprisonment sufficiently reflects the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong. 

17.  By reason of the defendant’s Form 8 status I enhance the starting points by 5 months to 48 months.

Personal consumption

18.  In his letter to court, the defendant claims that part of the ecstasy was for his own consumption.  The defendant writes: “On the day of my arrest I was buying drugs for someone else and I planned to keep a little for my own use and pass on the rest of the drugs to the buyer.”

19.  Counsel submitted that the defendant did not use dangerous drugs before coming to Hong Kong.  Between 2016 and 2017, the defendant started mixing with the wrong crowd and began using drugs.  In November 2019, he decided to seek treatment from Yau Ma Tei Methadone Clinic.  His brother, who lives in British Columbia, Canada has from time to time provided support to the defendant by wiring him money.  The defendant admits that he has used such wired funds to pay for drugs for his own consumption. 

20.  Counsel further submitted that if a “significant proportion” of the drugs were for the defendant’s self-consumption, he meets the threshold of qualifying for a discount of between 10% and 25% (HKSAR v Choi Chun Wo [2018] 5 HKLRD 717 at [29] (CA) applying HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 (CA)).  Even when “a less than significant proportion of unquantifiable drugs is accepted as being for the defendant’s own consumption then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact” (Choi Chun Wo, applying HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 at [28] & [29]) (CA)).

21.  Counsel stressed that in his letter the defendant writes; “I’ve tried my ultimate best to quit taking drugs, but I couldn’t stop”; and “I would buy drugs for someone and keep a little for myself to keep for free”.  Of the 80 ecstasy tablets, which are the subject of the charge, the defendant “planned to keep a little for [his] own use”. 

22.  Counsel submitted that if the court considers this evidence insufficient to meet the “significant proportion” threshold, it is at least sufficient to engage the discretion recognized in Liu Ming Sze.  This would normally warrant a discount of something less than 10%.

23.  In support, counsel relies on what the defendant writes in his said letter dated 14 December 2021, a letter from the Department of Health dated 4 June 2021 (“the DH letter”) and a photograph of a Customer Receipt for a Money Transfer from Money Mart in Surrey, British Columbia to the defendant for HK$3,000 dated 30 August 2020 (“the Money Transfer Receipt”) which is said to be transferred from the defendant’s brother.

24.  It is clear from what is said in his letter: “I would buy drugs for someone and keep a little for myself to keep for free” and “On the day of my arrest I was buying drugs for some else and I planned to keep a little for my own use and pass on the rest of the drugs to the buyer” (emphasis added) that the defendant is not claiming that a substantial and significant proportion of the ecstasy tablets was for his own consumption. 

25.  In fact, the assertion that the defendant was addicted to ecstasy at the material time is a bare assertion.  As indicated in court I do not accept the defendant’s assertion from the bar table that part of the ecstasy was for his own consumption.  There is no evidence what type of drug the defendant was addicted to and what his daily consumption was.  The DH letter cannot support the defendant’s claim of personal consumption of the ecstasy tablet either.  The DH letter only states that the defendant attended Yau Ma Tei Methadone Clinic on 29 November 2019 and was given a methadone dose that day and that that was the only time the defendant had ever attended Methadone Clinic, which was some 11 months before the defendant’s arrest.  It is inconsistent with the defendant’s claim that he was addicted to drugs.  The Money Transfer Receipt at the most can only show that the defendant has been transferred a sum of HK$3,000 from his brother and nothing else. 

26.  Based on the above reasons, I reject the defendant’s claim that part of the ecstasy tablets was for his own consumption.

27.  Even if what the defendant had said in his letter were true that he “planned to keep a little for [his] own use”, I am satisfied this would make no difference to sentence (see Wong Suet Hau at para 34 where the Court of Appeal said that in most cases the difference in sentence, if any, will be slight.)

Sentence

28.  The only valid mitigating factor is the defendant’s guilty plea for which he would be given the usual one-third discount of the sentence.

29.  After one-third discount, the defendant is sentenced to 32 months’ imprisonment.