HKSAR v. TARVEEN ROHIT ROY R T PRAKASH

HCCC 75/2019

[2020] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: On 28 May 2018, Tarveen Rohit Roy R T Prakash, the accused herein, was intercepted by officers of the Customs and Excise Service at the Hong Kong International Airport. He was carrying a suitcase which was found to conceal 294 grammes of a mixture containing 193 grammes of heroin hydrochloride. He was arrested and taken before a magistrate.

On 4 March 2019, the accused was committed for sentence to this court by a magistrate on a charge sheet alleging the trafficking of the drugs found in the suitcase carried by him at the airport. In the course of doing that, the accused admitted the Summary of Facts in which the accused admits that he was in possession of the dangerous drugs that were seized for the purpose of unlawful trafficking.

This came before the Court of First Instance on 28 July 2020. At this hearing, the accused confirmed his plea and also confirmed his admission of the facts of the case. The matter was adjourned to today for disposition. The case has had a long history, and it will be necessary to outline a good deal of that history in order to understand the disposition that I intend to make. I will set out that history in the context of the issue about the appropriate discount to sentence which appears below.

Facts of the Case

As I have already indicated, the accused arrived at Hong Kong International Airport from Malaysia and was found to be in possession of a suitcase which had in it a rucksack which concealed a compartment containing the heroin, the subject of the charge. A quick drug test revealed that the substance was heroin, and the accused was asked how he got the backpack. His answer was “My brother give me in Malaysia.”

Following those enquiries, the accused told the Customs and Excise officers that he would be staying at the Princess Hotel. He presently had no instructions for the rucksack but a person by the name of Jack was waiting for him at the hotel. The accused told the officers that he would contact that person, using the contact in his phone.

The accused agreed to participate in a controlled delivery. The accused, under the control of the Customs and Excise officers contacted the person and also the other phone numbers which the accused told the officers were related to the suitcase. In the result, no one turned up and no delivery was made.

The accused submitted to a video-recorded interview. The essence of what he told the customs officers was that he had come to Hong Kong to collect some money. Apparently, the total sum was 4,000 Malaysian Ringgit.

The estimated street value of the dangerous drugs seized at the date of seizure is about $269,000.

Antecedents and Mitigation

The accused is the holder of a Malaysian passport. He is single. At the time he passed through customs, he was 19 years old. He had no previous convictions in Hong Kong or in Malaysia. At the time he was intercepted, the accused was studying for a Diploma in Mechanical Engineering. The court has seen his tertiary results obtained prior to his travelling to Hong Kong. They are quite impressive. The health of the accused is, apparently, good.

The accused has submitted a detailed written submission through his counsel. That details a hard-working but hardly wealthy life. He is the eldest son of the family, and the family is, in effect, supported by his mother. It appears that his father, who is overseas, does not provide much by way of support if anything. The accused supplements a modest allowance from his mother with part-time work. His studies in mechanical engineering were, apparently, showing real promise prior to coming to Hong Kong.

On interception, the accused participated in a controlled delivery and that had a number of relevant features. First of all, the accused agreed to participate and he did so without any hesitation. The second is that despite the best efforts of the accused in going along with the suggestions and directions of the officers of the Customs and Excise Service, the whole thing came to nothing. There were other matters that the accused invited me to take into account.

As will shortly become apparent, despite the plea of guilty before a magistrate which was, for all practical purposes, a plea made at the earliest possible moment, the plea was ultimately confirmed before this court on Tuesday last and is in a multitude of ways a late plea. As will shortly appear, when this matter came before this court last year, the accused applied to the court to reverse his plea of guilty.

In the mitigation advanced by the accused, he advances, in essence, two explanations for the application to reverse plea. One concerns events in Malaysia which I will in due course take account of. The other is what the accused characterises as difficulties with his solicitor.

Further, the accused has had contact with the authorities in Hong Kong, and I am prepared to a limited extent to take that into account.

Finally, the accused reasserts his remorse in a series of acts which he has undertaken to demonstrate that remorse. He points to the effect that his incarceration and prosecution have had on his family. He recognises now that a conviction will possibly have a bad effect on his intended career. Whether that is true or not is something I cannot properly assess from this point in time. It would certainly adversely affect possible immigration to places other than Malaysia on his release. The accused apologises to the court and to the Hong Kong authorities for committing this crime which he characterises as resulting from his stupidity.

Sentencing Principles

Trafficking in Dangerous Drugs

For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as heroin. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to heroin is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. There are consequences - sometimes serious ones - for the families of those who have become addicted to heroin.

The view of the community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment with a maximum sentence of life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.

The source of guidelines in relation to the trafficking of heroin starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. The correctness of guidelines in relation to heroin was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The applicable sentencing guidelines provide for a sentence for quantities between 50 grammes and 200 grammes of heroin to attract a sentence, if the accused had been convicted after trial, of between 8 and 12 years’ imprisonment.

Enhancement for Cross-border Trafficking

The courts of Hong Kong have for many years recognised that an aggravating factor in trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlies this is deterrence. In HKSAR v Abdallah (above) and also HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal suggested an appropriate enhancement where the drugs involved between 500 grammes and 1,000 grammes would be between 1 year and 2 years.

Assistance to the Authorities

In this case, the accused has provided assistance by participating in a controlled delivery. It has always been the position of the common law that an offender convicted of a crime will receive some credit against his sentence for any assistance which has been rendered to law enforcement agencies. And, in this regard, I cite Z v HKSAR [2007] 10 HKCFAR 183, 1 HKLRD 977, 2 HKC 265.

The courts have also directly considered the position of an accused who participates in what is commonly known as a controlled delivery. In HKSAR v NKWO Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal comprising Lunn VP and Macrae JA, held that there is no fixed percentage or identifiable range of percentage to be applied to such assistance. The court said that the reason for this is that because there is a wide range of circumstances which could apply in individual cases of assistance of this form. The court said that these would include:

(i)  the nature and effect of any voluntary participation;

(ii)  the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice;

(iii)  the degree or extent of assistance which had been provided; and

(iv)  the degree of risk to which the accused had exposed himself or his family.

The matter was further considered by the Court of Appeal in HKSAR v Lo Sze Tung Stephanie CACC 190/2017 [2018] HKCA 421. In that case, the Court of Appeal considered the situation of a controlled delivery. The court observed:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs did not attend at the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”

In the foregoing passage “these features” is a reference to assistance on the part of the accused person.

The court went on to consider the principles identified in Darlington (above). The court concluded as to the discount for unsuccessful controlled deliveries that it would take something “quite exceptional” to justify awarding a discount of as much as 40 per cent.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent. That is clearly established in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. However, in that case, the Court of Appeal recognised that if a plea is entered at the later stages of the proceedings, the court recognised that the sentencing court has a discretion to give a lower discount. Indeed, the Court of Appeal identified certain specific circumstances and provided substantive guidance as to the appropriate level of discount.

It is critical to note that the underlying rationale for the giving of any discount for a plea of guilty is the pragmatic or utilitarian motive of saving court time. The Court of Appeal in Ngo Van Nam (above) made the point that such matters as remorse do not ordinarily inform the discretion to accord a discount from the otherwise appropriate sentence to a person who pleads guilty.

The reason that it is necessary to articulate the principles which inform the exercise of a discretion to discount an otherwise appropriate sentence is because while it is true that the accused initially pleaded guilty at the earliest practicable moment, he applied to reverse his plea in proceedings in this court. It is necessary to look to an extent at the history of this matter to put the court in a position to make an evaluation of the appropriate discount.

Application of Sentencing Principles

Starting Point

Applying the recognised tariff for this quantity of heroin, a starting point of 11 years and 6 months is appropriate.

I intend to enhance the starting point by 3 months for the fact that the accused has brought these drugs across an international border from Malaysia to Hong Kong. That makes a total starting point of 11 years and 9 months. Given the well-known attitude of the Malaysian authorities to the trafficking in dangerous drugs particularly of this quantity, the accused might thank his lucky stars he was apprehended in Hong Kong as opposed to Malaysia.

Application of Discount

The matter first came before the court on 2 July 2019. It is relevant to note that a barrister, who was subsequently the subject of a complaint by the accused, appeared for him at that stage. That same barrister had represented him for a good deal of the appearances before the Magistrates’ Court. An adjournment was sought to make certain enquiries in Malaysia. What was sought was an adjournment of substantial length. The court agreed to adjourn the matter to 2 October 2019.

On 24 October 2019, the accused came before this court, represented by Mr Michael Arthur, Barrister-at-Law. At that hearing, the court was informed that the accused wished to make an application to reverse his plea. Given that Mr Arthur had only recently been instructed, he was unable to provide further particulars. In adjourning the proceedings to 3 December 2019 for mention, the court ordered that notice of the application be provided which was to inform the court and the prosecution of the nature and parameters of the application and the witnesses to be called in support of the application, if known.

On 3 December 2019, the matter came again before this court and Mr Arthur indicated that he was not yet ready to proceed. He was able to inform the court that the basis of the application was that there had been previous misrepresentations and mistaken advice given by counsel then appearing for the accused as to the appropriate plea. One of the misrepresentations alleged to have been made against his former counsel was that it would be in order to make an application for a reversal of plea before the Court of First Instance notwithstanding a plea of guilty before the magistrate. Directions were given to those representing the accused that on the premise that this application was to be maintained, it was necessary for there to be evidence on affidavit and that appropriate notice be given to his former lawyers who allegedly misrepresented the position to being properly versed as to those allegations in a manner analogous to the directions recently given in the Court of Appeal as to appropriate procedure for misconduct of counsel where that was alleged in an appellate context (See: HKSAR v Apelete Kokou Afla (No. 2) [2019] 5 HKLRD 574, CACC 176/2017, [2019] HKCA 1320). The matter was adjourned to 24 December 2019 for a brief mention.

Reverting to 24 December, at the conclusion of the hearing on 24 December, the matter was set down for hearing on 13 and 14 February 2020. As a matter of history, that hearing could not be reached because those dates fell within some of the early orders for the GAP.

On 16 June 2020, Mr Arthur again appeared for the accused and informed the court that there was an application to withdraw the application for the reversal of plea of guilty. The prosecution had no objection to this, and the matter was adjourned for mitigation. Indeed, the mitigation did proceed on 28 July 2020 on the basis of a confirmed plea of guilty and admission of the Brief Facts.

In the course of mitigation, this court was told for the first time of what was said to be the real reason for the application to reverse the plea. This is contained in an affidavit of the accused and concerns a series of enquiries that were being made in Malaysia about criminal misconduct on the part of others in that country. The only problem with this is that not only was the court not told about this being the real basis for the application but there was, as I have said, a positive assertion of serious misconduct which was made against a senior and respected member of the Bar which was not now being pursued. Granted that it was mentioned in the proceedings with which that barrister was concerned that it would be necessary to generate witness statements from certain persons in Malaysia which might be involved in criminal misconduct. Now that the court is more fully appraised of the situation, the indication that such witnesses would actually give evidence in Hong Kong now stretches the outer boundaries of wishful thinking.

If the plea of guilty had been maintained and time was asked for in order to make the enquiries that appear now to have been made in Malaysia, that time could have been granted if the true basis of the application had been maintained and made to the court. However, the only time that those Malaysian enquiries were ever mentioned was in the first appearance by that counsel who was the subject of the complaint back in July 2019. It is to be recalled that at the time he appeared, there was no suggestion that the plea of guilty was in issue. It is to be recalled that a fairly substantial adjournment was granted in aid of that cause to make enquiries in Malaysia.

Counsel for the accused, Mr Arthur, very properly informed this court on 30 May 2020 by way of a letter that the accused had given him firm instructions that he would not proceed with his application to reverse his plea. The time of this court has been wasted. During the time from receiving notice of this application to reverse the plea until the time of informing the court that the application was not to be proceeded with, there was no mention of the present explanation of the accused. Further, the accused filed an affirmation in support of his application to reverse his plea. That was affirmed, I think, on 10 January 2020. Paragraph 30 of that affirmation is the most pertinent. In that, the accused speaks of a conversation with counsel who initially appeared for the accused in the Magistrates’ Court and on the first hearing before this court in which he advised the accused to plead guilty to protect his one-third discount, and if certain statements became available, he could then apply to reverse his plea in the High Court and “fight the case”. The advice that the accused says was rendered was rendered in the presence of a very senior and experienced solicitor. If that was the basis for the application to reverse the plea, small wonder that it was not proceeded with. True it is that in his conference with the barrister, the subject of complaint, and the then instructing solicitors, he was concerned with criminality, concerned with his case in Malaysia. However, that was not vouchsafed to the court.

In my opinion, the time of this court has been significantly wasted. That concern underlies the reasoning in HKSAR v Ngo Van Nam (above). Of course, none of the suggested discounts for late pleas in that case are applicable to the present circumstances. There was a timely plea at one stage. There was an application to reverse that plea, and we are now back where we were about this time last year. If keeping count of days was relevant, some allowance would have to be made for the GAP.

However, I do not think it is necessary or appropriate to quantify the amount of wasted time save to say that it is substantial. I suspect that the real underlying concern of the accused about criminality in Malaysia and how that would affect the proceedings in Hong Kong was, on a plea of not guilty, a product of naiveté and more than a dash of stupidity and a very large helping of wishful thinking.

I do not think I can take account of the reckless and inappropriate accusations that have been made in this case. I know from personal experience, not as a recipient of such complaint but as a counsellor of those who have been the recipients of such complaint, of the anxiety and hurt that such complaints engender. I am informed that those against whom complaints have been made have now been informed that the proceedings are no longer intended to continue so far as they are concerned. I would have thought a modest apology might be in order.

Let me say this plainly. Despite my criticisms of the accused for his conduct in this matter, I am sure that none of this criticism falls at the feet of Mr Arthur. In my opinion, if I may say so with respect, he has behaved impeccably and professionally throughout.

Although I might justifiably be accused of generosity in the exercise of my discretion, I propose to discount the otherwise appropriate sentence on account of the plea of guilty to the extent of 17 per cent. To this, I add a further 10 per cent to take account of relevant assistance here and in Malaysia.

In respect of Malaysia, not least by reason of the multilateral anti-drug international instruments to which Hong Kong through the People’s Republic of China is a party, Hong Kong has a very legitimate and proper interest in any efforts to stem the flow of drugs to Hong Kong from Malaysia. I am sure that in this regard, the accused has done his best to date. However, the authorities demonstrate that what is critical in fixing any discount is valuable assistance. That is achievement rather than hopes for the future. The discount could be amplified by the Hong Kong authorities in the future. However, that is not something about which I am able to say much.

Would the accused please stand up? Tarveen Rohit Roy R T Prakash, you have brought heroin into Hong Kong. You did so for money. Your act was almost certainly an act of monumental stupidity. If your conduct had not been discovered, the quantity that you brought in would have added to the misery of the community in Hong Kong. In an attempt to combine justice with mercy, the order of this court is that you be sentenced to 8 years and 6 months’ imprisonment, and that is my order.