HKSAR v. DASWANI ANIL SHEWAKRAM

IN THE COURT OF APPEAL

1997, No.253
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter Anil Shewakram Daswani faced two charges - one trafficking in a dangerous drug which alleged that he on 15th June 1996, at the road junction of Java Road and King's Road unlawfully trafficked in a dangerous drug namely 27.03 grammes of a crystalline solid containing 27.03 grammes of methamphetamine hydrochloride. The second charge was possession of an identity card relating to another person. It was alleged that he had at the time of his arrest an identity card which related to a person Elvie M. Casica. The applicant pleaded guilty to each charge and was sentenced to five years and four months on the first and four months on the second and the sentences were ordered to be concurrent. He now seeks leave to appeal against the former sentence.

2. The facts were on their face simple enough. The applicant was arrested while attempting to sell two packets of the drug known as "ice" to undercover police officers and, when he was searched, the identity card was found upon him.

3. Deputy Judge Wesley Wong, when sentencing, followed the guidelines in the case of The Attorney-General v. Ching Kwok-hung (1991) 2 H.K.L.R. 125, taking a starting point of eight years. He said:

"I have considered all that has been said on your behalf by your counsel. Trafficking in Ice is a very serious offence. It may cause permanent damage to the abuser and, in turn, it may affect society as a whole. Hence, a deterrent sentence is essential to deter other traffickers.

For offences of this nature, family background and the ill health of your parents count very little in mitigation. In view of the serious nature of the offence, the Court of Appeal has laid down guidelines in respect of sentence. Though I am aware it is not a straight jacket, I can only depart from the guideline if there were extenuating circumstances. I can find none in the present case. However, I can give you a substantial discount because of your hereto good character, your plea of guilty which fully demonstrates your remorse, and that you have saved the court's time and public money.

For the amount you possessed, I take a starting point of eight years and, in view of your plea, I give you the maximum one-third reduction and sentence you to five years, four months imprisonment.

In respect of the second count, I impose a sentence of four months imprisonment, to be served concurrently with the first count."

4. The applicant has today, in a forthright fashion, argued a number of points in person. The point of merit argued is that his counsel raised an aspect of entrapment, when addressing in mitigation, which the judge ignored when he came to sentence. This, he submits, was raised in the following passages. The first passage appears at p.5 of the transcript. Mr. Mullick, who then appeared for him, stated:

"He (the applicant) came to know a person called Henry Wilson. Henry Wilson, in fact, a Eurasian. Indeed, he was born in Hong Kong. It seems, according to my instructions, that Mr. Wilson is a manager or a general factotum of one of the residential apartment houses in Chung King Mansions. They became associated, partly taking drugs, and the drug culture there, and Mr. Daswani came to know a man called Hussain. Hussain, in fact, is a supplier of Ice, and Mr. Daswani is one of his clients.

It is my instruction, my Lord, it was through Mr. Wilson - Mr. Wilson's agency - that the accused came to meet Mr. Spencer. Mr. Spencer, of course, is the officer who is named as PW1 in the summary of facts. I don't think there is a dispute, Mr. Wilson and Mr. Spencer have known each other for 10 years. One doesn't know quite how, but that is a fact, they have known each other for 10 years, or (sic) acquaintances."

The next pertinent passage appears at p.8 where Mr. Mullick said:

"This is a case where the police receive information and then, when Mr. Daswani appeared on the scene with the man Wilson - which is not in dispute - he immediately approached Mr. Spencer, and how could he have done that unless he had been told that is the person to approach. In that sense, there is this element of being induced into a transaction which, perhaps if Mr. Wilson had not been around, would not have taken place."

5. It seems to us, although the matter was not put as clearly as it might have been, that these passages clearly raised an issue of entrapment. Indeed before us today Mr. Luk for the respondent does not suggest that it was not squarely raised and does not seek to contest the factual basis upon which it rested. The applicant has referred us to R. v. Marjorie Joy Beaumont (1987) 9 Cr.App.R.(S.) at 342, which makes it plain that entrapment is a matter which must be taken into account by the sentencing judge. Hirst J. stated that entrapment provided "a substantial mitigating factor" and that the sentencer in that matter fell into error in ignoring it. We are satisfied that, in the present case, the judge did ignore the entrapment factor and did fall into error by so doing. We, having considered and given full weight to that factor, are satisfied that the sentence of five years and four months should be varied to one of two years and eight months.

6. The application succeeds. The application is treated as the hearing of the appeal and the sentence is varied from one of five years and four months to one of two years and eight months. The sentence on the other charge remains concurrent with that sentence.