HKSAR v. SINGH AMRIK

DCCC 148/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 148 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of the offence are that the defendant on 25 November 2015 in domestic premises in Elgin Street, Central unlawfully trafficked in dangerous drugs, namely, 9.05 grammes of a crystalline solid containing 8.85 grammes of “Ice”, 1.08 grammes of cannabis which was in herbal form and, lastly, 1.13 grammes of a powder containing 0.4 grammes of cocaine.

3.  The facts of this case are as follows.  The defendant had leased a flat on Elgin Street and after a period of time was unable to pay rent.  The owner obtained a writ of possession to recover the flat and on 18 November tried to gain access with a bailiff.  The defendant came to answer the door but refused them entry. 

4.  A few days later, on the date of the offence on 25 November, the bailiff and the owner’s representative went to the flat again but were refused entry.  Consequently, as a last resort, they sought the assistance from a locksmith and the police.  The locksmith opened the door, and the bailiff, who is PW1 on the facts, advised the defendant who was inside the premises that he could take his personal belongings with him.  The bailiff then proceeded to check the premises and found some suspicious items, in particular, two packets of white powder on or near a tray on a desk in the living room, and near this powder were many small resealable transparent plastic bags.       

5.  Once the bailiff made those discoveries, finding them suspicious, he informed a police officer who was stood outside on standby.  The officer then entered the premises and saw the same items.  He also saw the defendant acting nervously and holding a bag tightly.  This officer searched the defendant and searched the bag.  In the bag, the officer found a small tube with a plastic straw attached which was fit for inhaling “Ice” and also a small black bag which contained some empty transparent resealable plastic bags and the three drugs that make up the charge. 

6.  The defendant was then arrested.  Under caution, he told the police officer that he consumed drugs himself and occasionally took them to parties and shared them with friends.  Other than the drugs in the small bags found in the defendant’s bag, the police found other items normally associated with drug trafficking inside the premises.  Those include an electric scale, calculator, 123 resealable plastic bags, a small hammer, scissors, metal trays, a spoon, a cutter and other such items.  The white powder on the desk was confirmed not to be a dangerous drug but could be used to dilute or cut dangerous drugs.  

7.  The value of the drugs was estimated to be about $3,915.  There is a photograph album that shows the drugs found in the defendant’s bag as well as all the paraphernalia found in the premises.

8.  The defendant’s mitigation is that part of the drugs was for self-consumption and he would, as he told the police, share with others when at parties.  The mitigation is based on his trafficking being a social trafficking.  I have confirmed the plea with Mr Donald that it is an unequivocal plea.  The prosecution’s stance is that bearing in mind the paraphernalia found, their view is the defendant was more than a social trafficker. 

9.  The defendant’s submission that some of the drugs were for own consumption can be supported by the fact a urine test was conducted by the Correctional Services Department which showed that two days after the defendant’s arrest, he had amphetamine in his system, and although he has no previous similar convictions, that urine test plus the two “Ice” bongs will support his submission that he is a user of “Ice”.  

10.  And as some of the drugs being for self-consumption, I have considered the case of HKSAR v Chow Chun Sang CACC 135 of 2011.  Where there is a submission of social trafficking as opposed to trafficking for a financial gain, I have been referred to and referred myself to the authority of HKSAR v Wong Suet Hau [2002]1 HKLRD 69.  That authority does set out factors the court can consider when hearing such mitigation, and I have referred myself to the list of factors.

11.  I have also referred myself to what the Court of Appeal say about sentencing where there is social trafficking.  The Court of Appeal says that given the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all surrounding circumstances in order to decide whether or not to accept it, and that is where the list of factors apply.

12.  The Court of Appeal also says:

“Making fine distinctions between different forms of trafficking and the motives behind them would undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.”

13.  I accept and the prosecution do not challenge the submission that some of the drugs would have been for the defendant’s own consumption.  In my view, there is no need to quantify how much would be for his own consumption.  As I have said, I have referred myself to the authority of Chow Chun Sang.  In that authority, the Court of Appeal was of the view that depending on individual circumstances and facts, the discount to sentence can be between 10 to 25 per cent taken off the basic starting point.  So I take that authority into account.

14.  In my view, I agree with the prosecution that the paraphernalia does not point to purely social trafficking.  However, even if that was the case and that was the truth, there is still the evil behind all aspects of trafficking which the courts have a duty to deter, and supplying drugs, be it in a party situation or to the public, whether or not for financial gain, the evil behind trafficking must be deterred.

15.  I have also considered that there are three types of drugs in this charge, not just one, and that leads me to consider the authority of HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367.  That authority discusses the sentencing approach where there is more than one type of dangerous drug, and I have considered the individual versus the combined approach and, in my view, the combined approach is the more appropriate approach here.   

16.  The defendant is 28 years old.  He is single. He is not a man with a clear record, but his one and only previous conviction is not similar.  He was convicted of assault occasioning actual bodily harm and served an 8-month term of imprisonment.  He has no other convictions, certainly none for drugs.  I have been told that he was a bar manager earning a salary of over $20,000 per month but prior to his arrest, his bar was closed down and he was at the time of his arrest unemployed.  What his previous employment tells me was that he was able to afford to consume “Ice”.

17.  I have had a letter of mitigation from the defendant.  He expresses remorse.  He has disappointed his family.  He is worried about his family and he promises not to reoffend.

18.  Mr Donald has kindly set out in his written mitigation the sentencing tariffs for the three types of drugs.  “Ice” is the most potent drug of all three.  Moreover, it is the highest quantity of all three drugs.  And in the Attorney General v Ching Kwok Hung [1991], that is a general authority for trafficking “Ice” and the Court of Appeal has said where between 0 to 10 grammes of “Ice” is trafficked, a starting point of between 3 to 7 years would be appropriate.  And in this case, mathematically speaking, this amount of “Ice” here would attract a just-under-6-year-and-6-month sentence.

19.  I take into account that the quantity of cannabis is de minimis, and I will not take that into account.  There is a small amount of cocaine which on its own, according to the authorities, would have attracted a 2-year starting point.  However, as I have said, I am going to take the combined approach in sentencing and a global view.

20.  Defendant, please stand up.  For the “Ice”, I will take a starting point of 6 years and 3 months’ imprisonment.  And where the cocaine is concerned, I will add to that starting point a term of 4 months’ imprisonment.  That is a total starting point of 6 years and 7 months.  As I have said, I accept that part of the “Ice” will be for your self-consumption.  So I intend to reduce that starting point by 18 months. That is a discount of just over 20 per cent. 

21.  Once that discount reduction is made, the starting point becomes one of 5 years and 3 months.  You have pleaded guilty.  You are entitled to a discount of one-third for your plea.  After that discount is applied, for this sentence, for this charge, you are sentenced to 3 years and 6 months.