HKSAR v. GURMAIL SINGH

HCCC 306/2017

[2018] HKCFI 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 306 OF 2017

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

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COURT:

On 28 August of 2017 at Eastern Magistracy the defendant, Gurmail Singh, pleaded guilty to one charge of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He was on that day committed to this court for sentence. The charge alleged that on 18 January 2017 at Mong Kok Road near the junction of Tung Choi Street in Mong Kok, Kowloon in Hong Kong, together with Kwok Wing-yau unlawfully trafficked in a dangerous drug, namely 28.1 grammes of a crystalline solid containing 27.6 grammes of methamphetamine hydrochloride.

A Summary of Facts in support of the charge was read on that day and accepted by the defendant.

By way of background, the defendant’s co‑accused was on the same day committed to this court for trial.

On 28 May of this year both matters came on before me, the matter of this defendant for sentence and the matter of his co‑accused for trial.

The defendant on that day confirmed his plea of guilty and, as is the normal practice, sentencing was adjourned until such time as the trial of the co‑accused was completed.

Unfortunately, the trial of the defendant’s co‑accused did not conclude. At the end of a voir dire the matter was taken from the list and ordered to be refixed. To my knowledge and my inquiries, that matter has yet to be refixed, and there is as yet no notification or no advice as to when that will take place.

It has always been accepted that co‑accused should, in the normal circumstances, be sentenced by the same judge. There are very cogent reasons for this. However, there are occasions when this cannot be accommodated.

It is also accepted that sentencing should not be delayed unduly or indeed delayed with uncertainty. It is for these reasons that I have brought this matter on today for sentencing. The matter in respect of this defendant must be brought to a conclusion.

Returning to the Summary of Facts, this reveals that just after midnight on 18 January 2017 police officers noticed a taxi stationary in Mong Kok Road in Kowloon. It remained for some moments with its hazard lights flashing. The police officers approached the taxi and intercepted the passengers who were seated in the rear. Those persons were the defendant and his co-accused, a female, Kwok Wing‑yau. She was then aged 17.

Both the defendant and Kwok Wing-yau were removed from the taxi and taken to a nearby lane, where they were searched. In the right front trouser pocket of this defendant was found a transparent resealable plastic bag which contained a crystalline solid.

The police officers suspected that this was a dangerous drug, namely methamphetamine hydrochloride. Both the defendant and Kwok Wing-yau were arrested. He was cautioned for the offence of trafficking in a dangerous drug. His response to that caution was: “That packet of stuff is not mine. I accompanied the girl to take a taxi to come over to Mong Kok to find a friend only.”

The co-accused, Kwok Wing-yau, was not found to be in possession of any illegal substance.

Both were taken back to the Mong Kok Police Station and thereafter processed.

The initial suspicions of the police officers proved to be correct. The crystalline substance was later determined to be 28.1 grammes of a crystalline solid containing 27.6 grammes of methamphetamine hydrochloride. That amount of methamphetamine hydrochloride had an estimated street value of in excess of $8,000.

The defendant now admits that he was, on that occasion, trafficking in those dangerous drugs.

The defendant is now aged 42 years. He was born in India, but he came to Hong Kong at a very young age in 1993. It appears that up until 2012 he had not come to the notice of the authorities, but thereafter he was convicted on a number of occasions of offences of burglary, blackmail and going equipped for stealing. I am advised by his counsel, Mr McGowan, that the direct cause of his commencing to offend was his addiction to dangerous drugs and the need to fund that addiction.

On the last occasion before the court, which was 28 February of 2017, he was sentenced to 19 months’ imprisonment in respect of three counts of burglary and one count of attempted burglary. Several of those were partially consecutive one to the other.

In respect of the defendant, Mr McGowan quite properly acknowledges that the Court of Appeal observations in respect of sentencing guidelines are binding upon me. He urges me to approach the defendant’s circumstances with as much leniency as I can in the circumstances. He points out that, amongst other things, the defendant, whilst incarcerated, has voluntarily become an organ donor, a course which I consider very commendable, but regrettably do not think it’s a matter which will assist him in mitigation.

The Court of Appeal guidelines for sentencing for quantities of methamphetamine hydrochloride were revised and restated in HKSAR v Tam Yi Chun [2014] 3 HLKRD 691. Various bands for the assistance of sentences are therein set out.

In respect of this quantity of methamphetamine hydrochloride, namely 27.6 grammes, it comes within band B, which indicates for a quantity of methamphetamine hydrochloride between 10 and 70 grammes a starting point after trial for sentence is between 7 and 11 years.

For my own part, looking at the breakdown within that band, the appropriate starting point after trial for sentence in this case would be one of 8 years.

This defendant has pleaded guilty at the first opportunity, and for that reason he is entitled to a full one‑third discount from that starting point.

I must consider whether, in the circumstances, there are any other factors which would enable me to increase the quantum of that discount. Regrettably, there are none.

Applying a full one-third discount to a starting point of 8 years would result in a sentence of 5 years and 4 months’ imprisonment, and that is the sentence I impose in this case.