HKSAR v。 PAL ANKIT

DCCC 444/2024

[2025] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 444 OF 2024

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REASONS FOR SENTENCE

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

2.  This case involves 11.9 grammes heroin and the Summary of Facts relied on by the prosecution shows that it is a straight forward case where the police arresting officer spotted the defendant on 23 August 2023 at 1010 hours in Yuen Long.

3.  At that juncture, the defendant “lowered his head, slowed down and used his left hand to cover his left front trousers’ pocket”.

4.  After the arresting officer intercepted the defendant, the latter took out a pink plastic bag and threw it on the ground.  This bag was found to have contained a sealed transparent bag containing 50 plastic straws containing the dangerous drugs in this case.

5.  Further search revealed that the defendant had in his possession another sealed transparent bag containing 50 plastic straws of dangerous drugs.

6.  Under caution, the defendant claimed that he picked up the two plastic bags from a rubbish bin nearby about 10 to 15 minutes before he was arrested.

7.  The defendant was a Form 8 holder.

8.  The 100 straws of dangerous drugs were confirmed to be 11.9 grammes of heroin hydrochloride (a salt of heroin).  The estimated street value of these drugs in August 2023 was around HK$11,169.

9.  In mitigation, it is confirmed that the defendant had a criminal record of minor gambling offence.  He is now 32 years old and his family are all living in India.

10.  He came to Hong Kong in December 2015 and has been an ISS recipient with HK$1,500 monthly allowance.

11.  It is said that the defendant would consume heroin and ICE to treat his inguinal hernia symptoms.  He would spend HK$3,000 per month on average on dangerous drugs before his arrest.

12.  The Defence refers to the Sentencing Tariff of R v Lau Tak Ming & Anor [1990] 2 HKLR 370.  I also note the new sentencing guideline in HKSAR v Huang Ruifang CACC 106/2022 [2025] HKCA 234.  What remains applicable and relevant to the present case is that, the band of 5 to 8 years starting point is adopted for 10 grammes to 50 grammes of heroin/cocaine.  I also remind myself of the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 set the steps to be taken in sentencing and drug trafficking.

13.  Mr. Ng for the defendant fairly and properly raises that the involvement of a Form 8 recognizance holder remains a separate aggravating factor (see HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 at paras. 70-71).

14.  The Court of Appeal also considered in another case that “[t]he enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent value.  On many occasions this court has said that the amount of enhancement should be left to the discretion of sentencers but that it will lose its deterrent value in respect of serious criminal conduct if it is less than 6 months.”  (emphasis added)  (HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805 para. 32).

15.  On percentages of the enhancement, the Court of Appeal remarked “the primary goal of the enhancement for the Form 8 status is denunciation and deterrence through severe punishment.  If this at times results in disproportion between the amount of enhancement and the head sentence to which it is added, then so be it.  Courts cannot allow the importance of the message being sent by the sentences they impose to be undermined or diluted by arguments based on percentages or disproportion.” (see para. 39)

16.  Mr. Ng further requests for a 10% discount on the basis that a significant portion of the dangerous drugs in this case was for self-consumption. He relies on certain medical reports and a urine test report.

17.  Having heard further submissions and reviewed the available materials, this court is not prepared to accept the request, bearing in mind the case of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.

18.  First of all, the defendant elected not to testify in support of this request.  Conversely, he did not mention about self-consumption upon being arrested.  It is not a situation where an accused remained silent at the scene.  He chose to speak but did not reveal anything in relation to the purpose of his possession of the dangerous drugs.

19.  He only got HK$1,500 monthly allowance.  In stark contrast, he claimed he would spend HK$3,000 per month on drugs consumption.

20.  Whilst there is no question on his medical conditions, the urine test report revealed his connection with ICE.  It is important to draw a distinction between a habit of consumption and the purpose of the possession of a dangerous drug in question.  The defendant could have consumed heroin many times before, but the urine test does not show that he did on this occasion. This Court does not accept that there is such projection either.  In the absence of evidence, the projection that the defendant might use the dangerous drugs in this case for self-consumption is mere assertion.

21.  Let us not forget that the defendant now pleads guilty to the charge and the Summary of Facts points to 11.9 grammes of heroin, which is the quantity particularized in the Charge Sheet.

22.  According to Cheung Wai Man, it is for the Defence to satisfy the sentencing court regarding (1)  whether any of the dangerous drugs in question was for self-consumption and (2)  how great is the proportion, i.e. whether it is significant.  I am not satisfied that the defendant is entitled to any discount under this head of mitigation.

23.  Having considered all the relevant factors in this case, this Court takes a starting point of 60-month.

24.  As suggested by the Defence, a 6-month enhancement is required to reflect the defendant’s status.

25.  This 66 months’ imprisonment is reduced to 44 months’ imprisonment on the basis of the guilty plea.

26.  Following the steps propounded in Herry Jane Yusuph, this Court still finds no further mitigating factor and an immediate custodial sentence is the only appropriate form of sentence.

27.  The defendant is therefore sentenced to a 44-month jail term accordingly.