HKSAR v. LIMBU PRASHANT

DCCC 689/2021

[2022] HKDC 599

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 689 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant was found guilty after trial of one count of trafficking in a dangerous drug.

Facts

2.  On 25 February 2021, a warehouse assistant of Linehaul Express (HK)  Ltd (“Linehaul”)  handed over to customs officers in Hong Kong an inbound parcel numbered 814004 (“First Parcel”)  from India at the Cargo Examination Compound, Cathay Pacific Cargo Terminal (“Cargo Terminal”).

3.  Upon examination, customs officers found 20 handbags and 64 pouches inside the First Parcel.  40 packets of what were later confirmed to be cannabis resin wrapped in plastic wrappings were found concealed in the inner linings of the 20 handbags.

4.  On the same day, customs officers were notified by a staff member of Linehaul that there was another parcel numbered 814006 (“Second Parcel”)  inbound from India with the same consignee and description of goods as the First Parcel’s.  Upon examination, customs officers found another 40 packets of what were later confirmed to be cannabis resin concealed in the inner linings of the 20 handbags inside the Second Parcel.

5.  Around 10:40 am on 26 February 2021, a controlled delivery operation for the First and Second Parcels was conducted at Man Ying Street, Jordan, Kowloon. Customs Officer CO 14147, disguised as a courier from Linehaul, called the receiver’s number appearing on the delivery records of both parcels at 9:59 am and a male confirmed later to be the defendant picked up the call at 10:01 am and confirmed that he had two parcels to collect.

6.  Around 11:14 am, the defendant approached CO 14147 opposite lamppost no AB0598 on Man Ying Street.  After signing both parcels’ delivery records, the defendant received the parcels from CO 14147.  Thereupon, CO 14147 revealed his identity and arrested the defendant.

7.  Under caution, the defendant claimed that he had no knowledge about the presence of drugs in the parcels.

8.  The cannabis resin concealed in the handbag linings were found by government chemist to contain a total of 8,063.29 grammes of cannabis resin.  Their total street value was HK$266,088.57.

9.  The defendant failed to rebut the presumptions of possession and of knowledge about the nature of the drugs arising from s 47 of the Dangerous Drugs Ordinance, Cap 134, and was found guilty as charged.

Defendant’s background

10.  The defendant is 23 years old.  He was born in Hong Kong and educated up to secondary level.  He was unemployed at the time of the offence.

11.  He has a conviction for theft, for which he was sentenced to Probation for 18 months.

Mitigation

12.  Mr Allan emphasised that the defendant’s role was merely to collect the parcels; he was not the mastermind or the ringleader of an international syndicate; he had been cooperative with the customs officers during their investigation; and he had not challenged the bulk of the prosecution evidence during this trial.  Mr Allan asked the court to be as lenient with the defendant as possible.

Sentencing considerations

13.  According to the sentencing tariff suggested by the Court of Appeal in Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129, the sentencing band for possession of 6,000 to 9,000 grammes of cannabis resin for unlawful trafficking would be 36 to 48 months imprisonment.

14.  According to the defendant, after collecting the parcels, he was to put them in his own home to await his friend’s call, no doubt for further instructions as to what to do with the parcels.  So the defendant had to do more than merely collecting the parcels.  In the circumstances, I see no good reason to depart from the guidelines set out in Tuen Shui Ming, above.

15.  The defendant is guilty of trafficking in 8063.29 grammes of cannabis resin.  The appropriate starting point according to the aforesaid guidelines would be 44 months.

16.  There is clearly an international element to the offence, the drugs having been sent from India by courier service to Hong Kong.  The defendant must have known that the parcels had been sent from India.  The delivery records of the two parcels which he received from the customs officer in the controlled delivery operation clearly listed an address in Mumbai as the sender’s address.  The top right corner of the same records had the word “DELHI” written in the box marked “ORIGIN”.

17.  This is an aggravating feature which calls for an enhancement of sentence.  As for the amount of enhancement in sentence, the Court of Appeal in HKSAR v Chung Ping Kun [2014] HKLRD (Yrbk)  324 laid down broad guidelines regarding enhancement for this aggravating feature in cases involving trafficking in heroin, cocaine or “ice”, whereas the Court of Appeal in HKSAR v Chan Ka Yiu CACC 147/2016 issued guidelines with regarding to the amount of enhancement for trafficking in different bands of amount of ketamine.

18.  Allowing the appeal and reducing the amount of enhancement for this aggravating factor from 6 months to 3 months for the cross-border trafficking of 5.26 grammes of “ice”, Zervos JA said in HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, at paragraph 26, “ …It has been held that in relation to the international element in drug trafficking cases within the lowest band of up to 250 grammes, it will ‘generally’ not be appropriate to impose an enhancement of sentence of less than 6 months’ imprisonment.  However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent.” (Italics supplied)

19.  It is obvious from a look at the sentencing guidelines for the drugs mentioned in Chung Ping Kun and Chan Ka Yiu that trafficking in those drugs attracts far more severe sentences than trafficking in comparable amount of cannabis resin does.  It would not be right to apply enhancement guidelines for those kinds of drugs to the present case.

20.  In the circumstances of our case, an enhancement of 3 months for the aggravating factor of international element would seem just and appropriate.

21.  The defendant is found guilty after trial. In the absence of any effective mitigating factors, the defendant is sentenced to 47 months’ imprisonment.