HKSAR v. DHARMINDER SINGH

HCCC 200/2024

[2025] HKCFI 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 200 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Mr. Jeffrey Sze and was committed, on 20 June 2024, to the Court of First Instance for sentence. The defendant confirmed his plea and admission to the summary of facts before me and his conviction was duly recorded.

PARTICULARS

2.  Particulars of the count are that the defendant on 27 January 2022, at 21^st floor, Victory Building, no.199 Castle Peak Road - San Hui, New Territories, unlawfully trafficked in dangerous drugs, namely 17.5g of a solid containing 11.2g of ketamine, and 39g of a crystalline solid containing 38.8g of methamphetamine hydrochloride (commonly known as ‘ice’).

SUMMARY OF FACTS

3.  Police officers conducted an anti-narcotic operation on 27 January 2022, putting Flat F (“the Flat”)  on 22^nd floor of the particularized building under observation.

4.  At about 7:43pm, the defendant was seen walking up to the 22^nd floor in the staircase.  One of the police officers intercepted the defendant and revealed his police identity, whereupon the defendant immediately fled towards the 23^rd floor. The officer gave chase and caught up to the defendant and placed his hand on the defendant’s shoulder to try to stop him.  The defendant resisted but was soon subdued and handcuffed by that and other officers in the staircase.

5.  Upon search, photos of suspected dangerous drugs were found in the defendant’s mobile phone.  Using a key found on the defendant’s person, the police entered the Flat at about 8:15pm.  Inside the wardrobe in the living room were 2,251 transparent re-sealable plastic bags.

6.  While the Flat was being searched, other officers swept the staircase and found a sock on top of a meter box on the 21^st floor.  Inside the sock were 2 re-sealable plastic bags, together they contained all the particularized dangerous drugs.  There were also numerous empty re-sealable plastic bags, an electronic scale, and a green straw inside the sock.

7.  The defendant was arrested for trafficking in dangerous drugs.  He said in fluent Punti under caution that the dangerous drugs belonged to him and were for his self-consumption.  He said the scale and all the re-sealable plastic bags also belonged to him.  

8.  Upon search of the Flat, HK$368,800 in cash was found in a briefcase at the end of the bed in the master bedroom.

9.  By his admission to the summary of facts, the defendant admitted that he had unlawfully trafficked in the dangerous drugs found and seized on the charge date.

PREVIOUS CONVICTIONS

10.  The defendant has 4 previous convictions from 2 court appearances.  He was first convicted of theft in 2014 and was fined $500.  His next 3 convictions were all dated 21 May 2015, and were all for wounding with intent to do grievous bodily harm.  He was sentenced in the District Court to a total of 4 years’ imprisonment.   

BACKGROUND AND MITIGATION

11.  The defendant was born in India in September 1994 and is 30 years old.  He received education in India up to Form 1 equivalent level.  The defendant was offered a place at a local school in Tuen Mun when he and his family came to Hong Kong, but the defendant only studied for 6 months.  

12.  The defendant’s mother is a housewife, father a farmer in India.  The defendant’s older sister and younger brother are both unemployed.  The three of them have been living together in Hong Kong and are all seeking asylum here.  

13.  The defendant came to Hong Kong in 2010 with his family and has been staying here since.  He is a non-refoulement claimant and does not have any working history in Hong Kong, relying on allowances from International Social Service.  His application is at the judicial review stage.

14.  According to his antecedent statement, the defendant claimed that he suffered from asthma. He is not addicted to drugs and does not have any triad background.  

15.  Ms. Nisha Mohamed told the court that the defendant committed the offence to make some quick money.  It was a friend of his who supplied the drugs and told the defendant to pack them, promising him payment of $10,000, which the defendant had never received.

16.  The defendant wrote in mitigation, regretting what he had done that led him to prison, but claiming that it was due to peer influence that he committed the present offence.  He had been reflecting on his life and realized all the mistakes he had made.  Being away from his loved ones made him realized that the things which he took for granted could be easily taken away if he did not value them.  The defendant apologized for his commission of a serious crime, seeking leniency while prepared to accept the consequences of his wrongdoing.

SENTENCING

17.  The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.  

APPLYING HERRY JANE YUSUPH

18.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1], as well as the approach to sentencing trafficking cases involving more than one type of dangerous drugs as set out in HKSAR v Islam S M Majharul[2] are applied as follows.

Step 1: The applicable guideline tariff bands

19.  The applicable guideline tariff bands for 38.8g of ‘ice’, and 11.2g of ketamine is that of ‘7 to 11 years’, and ‘4 to 6 years’ respectively[3].

Step 2: The defendant’s role and culpability

20.  Although the defendant might very well had been involved in the direct trafficking in some or all of the drugs, there is insufficient evidence for this court to be sure that he did so take part.  As such, based on the facts that the defendant had admitted to, I find that he held the role of a storekeeper or courier, and this is the basis on which he will be sentenced.

Step 3: The relevant band within the guidelines

21.  The charge involves the defendant trafficking in both ‘ice’ and ketamine, with the latter constituting 22.4% of the total narcotic contents.  I will adopt the combined approach as set out in HKSAR v Yip Wai Yin and another[4].

22.  Of the two, ‘ice’ is regarded by the court as being the more potent drug as indicated by the higher guideline starting points.  Based on quantity and potency, I adopt ‘ice’ as the base drug.

23.  The arithmetical application of the relevant tariff bands to 38.8g of ‘ice’ and 11.2g of ketamine would lead to starting points of 8 years 11 months’ imprisonment and 4 years 1 month’s imprisonment respectively.

24.  Applying the absurdity test, assuming all 50g of narcotics were ‘ice’, any combined sentence above 9 years 8 month before considering any aggravating factors could be regarded as absurd.

25.  Applying the conversion test, 2.7g of ‘ice’ would attract a sentence of 4 years 1 month, being the guideline starting point for 11.2g of ketamine.  If this converted 2.7g of ‘ice’ is added to the actual 38.8g of ‘ice’, the combined quantity is 41.5g of ‘ice’, which would result in a starting point of 9 years 1 month.

26.  Applying the ratio test, based on the proportion of the two drugs, the sentence should be approximately 8 years 10 months.

27.  Taking the results of the tests as well as all the circumstances into account, I would increase the starting point for 38.8g of ‘ice’ of 8 years 11 months by 2 months to 9 years 1 month’s imprisonment as the combined starting point for the two drugs.

Step 4: Aggravating factors

28.  It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor.  Having considered the not insignificant quantity of ketamine, I will enhance the combined starting point by 5 months, taking the notional starting point to 9 years and 6 months.  

29.  There is another aggravating factor in the case in that the defendant was a Form 8 recognizance holder at the time of his commission of the offence.  

30.  The Court of Appeal remarked in HKSAR v Ali Saif [2018] HKC 19 that they would not expect an enhancement for this factor to be less than 6 months’ imprisonment in trafficking cases before the District or High Court, and stated that:

“If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

31.  Given the serious nature of the offence, the significant quantity of drugs involved, and the circumstances of the commission of the offence, I find that a 9-month enhancement is appropriate, taking the sentence to 10 years 3 months’ imprisonment.

Step 5: Mitigating factors

32.  I find that the only mitigating factor is the defendant’s timely guilty plea, for which he is to be granted a one-third discount, resulting in a sentence of 6 years 10 months’ imprisonment.

Step 6: Totality

33.  Taking a step back, I find that sentence in the circumstances a fair, just and balanced sentence.

FINAL SENTENCE

34.  The final sentence after plea is 6 years 10 months’ imprisonment.