HKSAR v. TALWINDER SINGH AND ANOTHER

DCCC 873/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 873 OF 2013

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REASONS FOR SENTENCE

1.  Talwinder Singh you have pleaded guilty to one charge of trafficking in 41.74 grammes of cannabis resin and 11.02 grammes of a solid containing 7.64 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1) and one charge of possession of a poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138.

2.  In summary just turned midnight on the 13 July this year the police were patrolling outside the Tang Shiu Kin Hospital on Queen’s Road East in Wanchai when they saw you together with another male.  When the police officers approached you dropped on the ground a blue plastic bag which you were holding in your right hand.  The police retrieved the bag and found the cannabis resin, the ketamine and the part I poison inside the bag together with 38 empty re-sealable plastic bags. 

3.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years imprisonment.  In Attorney General v Tuen Shui Ming & another [1995] 2 HKC 798 the Court of Appeal laid down guidelines for sentencing in cannabis resin.  Where the quantity of cannabis resin is under 2000 grammes sentence is up to 16 months imprisonment.

4.  I have carefully considered everything said by Mr Khosa on your behalf, including that you are addicted to heroin.  I take into account you have no previous drug related convictions.  

5.  Mr Khosa submits that as you are a first offender for trafficking in drugs; a drug addict and low down in the chain of trafficking that a rehabilitative approach to sentence should be taken by sending you for treatment at a Drug Addiction Treatment Centre. 

6.  I am told you came to Hong Kong in 2008 from which time you have been a torture claimant.  For reasons best known to yourself you declined to accept assistance available to you and instead slept in a subway.  Consequently you had no money which has led to you shoplifting earlier this year and now becoming involved in trafficking in drugs. 

7.  These circumstances whilst perhaps explaining your involvement in crime do not amount to mitigation, in particular for serious crime like trafficking in drugs.  Further the Court of Appeal has recently stated that the commission of offences by torture claimants is capable of aggravating sentence rather than mitigating (see HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013). 

8.  Whilst I do not use your status as an aggravating feature I am satisfied in all the circumstances, in particular the serious nature of the offence, that this is not an exceptional case to depart from the guidelines and impose what would be a very lenient sentence by sending you to the DATC. 

Starting points

9.  Mr Khosa submits that considering your culpability the cannabis resin should be subsumed within the starting point for the ketamine.  I disagree.  In considering culpability the starting point must reflect you were trafficking in two different drugs. 

10.  In the recent case of HKSAR v Yau Ka Ming CACC 144/2013 the Court of Appeal said that the starting point for trafficking in ice and cocaine was to be enhanced by 3 months for the unlawful trafficking at the same time in 27.42 grammes of herbal cannabis. 

11.  In HKSAR v Ramesh Karki HCMA 559/2004 the court held that a starting point of 12 months was appropriate for trafficking in 512.49 grammes of cannabis resin.  At the lower end of the scale in HKSAR v Rai Danesh HCMA 31/2005 a 4 months sentence was substituted where the appellant pleaded guilty to trafficking in 3.09 grammes of cannabis resin. 

12.  I am satisfied the proper starting point for trafficking in the ketamine is 3 years and 6 months which I enhance by 6 months for trafficking in 41.74 grammes of cannabis resin.  This results in an overall starting point of 4 years imprisonment which I am satisfied properly reflects your culpability on the trafficking charge. 

“Own use”

13.  Mr Khosa tells the court that you hoped that some of the cannabis and ketamine would be left over and given to you for your own consumption.  Although a heroin addict Mr Khosa has explained that by having no money you will take any other drug which is given to you, what Mr Khosa described as the “titbits”. 

14.  Applying the principles established in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69 (in particular paragraphs 33 and 34) even if some of the cannabis or the ketamine was left over and was to be given to you I am satisfied this would have no effect on sentence. 

Part 1 Poison

15.  Taking into account the poisons were packed together with the drugs I am satisfied a short custodial sentence is appropriate.  In the circumstances I take a starting point of 3 months imprisonment. 

16.  Giving you full credit for your pleas of guilty you are convicted and sentenced to 2 yearsand 8 months on charge 1 and 2 months on charge 2.  I am satisfied the possession of the Part 1 poisons does not increase your overall culpability. Accordingly I order the sentences on the two charges to be served concurrently.