HKSAR v. DHILLON KANWARJEET SINGH

HCMA 138/2019

[2019] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 138 OF 2019

(ON APPEAL FROM WEST KOWLOON MAGISTRACY

CASE NO WKCC 4013 OF 2018)

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REASONS FOR JUDGMENT

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1.  The appellant, a Form 8 holder, was convicted of one count of possession of dangerous drugs[1] upon his own plea and sentenced to prison for 8 months. He now appeals against the sentence.

2.  This is a case of “stop and search” by police in the street leading to the discovery of drugs. At around 5 p.m. on 22 June 2018, the Appellant was stopped by patrol officers in a rear lane in Sham Shui Po area; in his trousers’ pocket, the officers found the drugs in this case, 0.7 grammes of mixture containing 0.53 grammes of Heroin Hydrochloride, which was wrapped in 5 separate plastic bags and put in a cigarette box. He admitted it was for his own consumption.

3.  The case was heard before magistrate, Mr. Edward Wong, sitting in the West Kowloon Magistracy. Upon a plea of guilty from the Appellant, the learned magistrate adjourned the matter for a DATC report to be prepared for the Appellant.

4.  Although the Appellant was a drug dependent, he was not recommended for admission to the centre because of his immigration status, the report said.

5.  When the case was first brought up in the magistracy on 7 September 2018, it was adjourned, on the request of the Appellant, to enable him to seek legal advice, but he failed to show up on the next appointed hearing. A warrant for his arrest was issued by the court.

6.  It was not until 18 February 2019 the Appellant was arrested by the police and brought before the court; notwithstanding this, he was not charged with any offence relating to his failure to surrender to custody.

7.  The Appellant was acting in person in the court below as well as on appeal. He has not submitted any grounds of appeal; all that he said before me was that others facing similar charges received less sentence than him.

8.  In sentencing the Appellant to 8 months’ imprisonment, the learned magistrate said he had considered the case of Mok Cho Tik[2] and Norena Gutierrez Cristhian Andres[3], then he took 12 months as the starting point, giving 1/3 discount for his plea, and arriving at 8 months eventually.

9.  In Mok’s case, the Appellate Court suggested a 12—18 months range for a bona fide drug user and in Norena’s case held that the offender’s immigration status could amount to an aggravating factor for the following reasons (quoted by the learned magistrate):

“It is the addict who sustains the trafficking and is at the core of the drug culture. But for his need there would be no trafficking. However, he not only sustains the trafficker, he may, as happened here, himself become a trafficker. This usually occurs because the addict is lacking in sufficient income to fund his addiction or he may mix with other addicts and be a party to the sharing of drugs. The concept of latent risk, which is part of our sentencing law for the offence of simple possession, is based upon a recognition that there exists a risk that drug addicts will become involved in some form of trafficking, either commercial or social.”

10.  Undoubtedly, there exists aggravation in the instant case given his immigration status and the attendant latent risk. Obviously, the appellant is a person of very limited means (as an asylum seeker, his only source of income was $3,500 from the International Social Services), he cannot lawfully work in Hong Kong because of his immigration status, but on the other hand, he needs money to finance his drug habit. The risk of some of the drugs finding its way into the hands of others cannot be overestimated.

11.  Although the Appellate Court in Mok’s case did suggest the 12—18 months range, it went on to say that it is not the be all and end all of the appropriate starting point, it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.

12.  In the instant case, given the relatively small quantities of the drugs involved, the learned magistrate could have taken a lower than 12 months as the starting point, but clearly, he had taken into account the latent risk as aggravation, which would have adjusted the starting point upward, but he did not seem to have increased the sentence any further for this reason. The effects of these two opposing factors would likely to have cancelled each other out, and the end result would have been the same.

13.  Given the particular circumstances of the instant case, an 8 - month term was neither excessive nor wrong in principle.

14.  The appeal is therefore dismissed.