HKSAR v. DHILLON SUKHWINDER SINGH ALSO KNOWN AS DHILLON SUKHDER SINGH AND SUKHWINDER SINGH DHILLON

DCCC 526/2019

[2020] HKDC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 526 OF 2019

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Reasons for Sentence

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1.  The defendant, Mr Singh, has pleaded guilty to a single count of trafficking in a dangerous drug, the drug being a narcotic content of 9.45 grammes of cocaine.

2.  The facts have been agreed, showing that the defendant was located during an anti-narcotics operation in Yau Ma Tei in Kowloon on 8 March 2019.  The defendant was seen in Portland Street and had entered a unit on the 1st floor of a premises there, where the door was open. The defendant was seen to drop a package from his left hand.  The package contained a bag which contained the 9.45 grammes of cocaine.  The defendant was arrested.  At the time of arrest, he was found to be in possession of a mobile phone, and some cash. 

3.  The price of the cocaine located was said to be $11,269 and the defendant admits, for the purposes of these proceedings, that he was in possession of the cocaine for the purposes of trafficking in them.

4.  The antecedent statement of the defendant produced by the prosecution shows that he is aged 33 at the time the document was taken.  He was born in India.  He is claiming at this time in Hong Kong assistance from the International Social Service, or ISS, to cover his living expenses.  He describes himself as a drug abuser and a consumer of amphetamine and cocaine for some four years.  The defendant’s domestic circumstances is that in Hong Kong he is a Form 8 holder and has no family members in Hong Kong.  He also has two previous convictions for non-relevant offences, for which he was fined and imprisoned.

5.  The defendant puts forward a mitigation in respect of this offence.  As part of background to the mitigation, the defendant has provided a non-prejudicial statement to the prosecution on 27 November 2019.  Enquiries were conducted as a result of that statement, although nothing has arisen from that, I am told.  The offer for assistance was made on 20 September 2019. 

6.  Further mitigation advanced the defendant is an only child, was single, has a degree in arts.  Defendant claims he has a history of drug abuse, abusing both amphetamine and cocaine for several years.

7.  Further in mitigation, the defendant put forward the position that the drug that was purchased was for consumption by himself and others, and he claims, by way of mitigation, that at least up to 3 grammes of the total 11.8 grammes would have been for his own use, which is something like in the region of 25 per cent of the total amount of drug.

8.  Turning to the approach to sentence, the first calculation that must be made is the starting point for sentence and then if there are any aggravating factors that exist.  

9.  The determination of the starting point for sentence is based on the guideline.  The guideline is the one for cocaine.  The quantity of cocaine that is relevant is 9.45 grammes.  This falls within the band of 2 to 5 years for quantities of up to 10 grammes.  Therefore, the starting point must reflect the quantity of 9.45 grammes and will be in the region of 5 years’ imprisonment. 

10.  What I shall do at this stage is indicate the quantity that I will assume for the purposes of calculating the starting point for sentence.  Having regard to this quantity, I will take a starting point at this stage of 57 months’ imprisonment, which is slightly below the 60-month guideline for up to 10 grammes.

11.  The aggravating factor that exists in this case is defendant is a Form 8 holder.  I consider that aggravating factor should increase the 57 months back to the 60-month total, so I add 3 months to the original starting point to reflect the fact that the defendant is a Form 8 holder. 

12.  The starting point now lies at 60 months’ imprisonment.

13.  There are three mitigating factors to be taken into consideration:  firstly, the defendant’s claim of own consumption of a part of the drug; secondly, the fact that the defendant has provided a non-prejudicial statement; and the third factor, of course, is the defendant’s plea of guilty.

14.  Taking those in order, firstly, the defendant claims that up to 3 grammes of the drug would be for his own consumption.  It is the position in Hong Kong law that, where what is described as the threshold is achieved, that a discount of between 10 to 25 per cent of the starting point can be granted for the defendant’s self-consumption of the drug.  What is described as the threshold must be a significant portion of the drug, but that has not been enumerated.

15.  In this case, as I have already said, the defendant said the drugs were to be shared with others and he would consume something like a quarter or 25 per cent of those drugs. 

16.  The matters to consider in relation to this head of mitigation are, firstly, is it validly maintained as a head of mitigation? The prosecution say that defendant was a Form 8 holder and would not have had access to the considerable sum of money necessary to buy the drug; and, secondly, that the address that he dropped the drugs into was not necessarily found to be associated with the defendant; and, thirdly, that the defendant, when tested for drugs on entry into custody, was found to be positive for amphetamine but not for cocaine.

17.  The defendant said in his police statement or, more correctly, his antecedent statement, he was a consumer of cocaine and amphetamine, has maintained that from a very early stage in these proceedings. The defendant himself is a Form 8 holder and clearly makes some of his living out of the sale of drug.

18.  In my view, there is sufficient evidence to consider that the defendant is a consumer and possibly a major consumer of this drug.  The defendant’s mitigation has been put forward from an early stage. There is nothing to contradict specifically his claim that the drugs would be partly consumed by him and shared with others.  The defendant’s consumption of up to 3 grammes of the drug would be sufficient to take him over the threshold for a discount of between 10 to 25 per cent, it would  just take him over that threshold. 

19.  So, having regard to this factor, I consider the defendant is entitled to the discount of 10 per cent, which in this case, would be a 6-month discount from the original starting point of 60 months’ imprisonment.

20.  The second factor to consider is the defendant’s willingness to assist the prosecution and, to that end, a non-prejudicial statement was provided by him, providing him with what is described as drug intelligence to the police.  Although a name could not be given, a description of a man was given; also, the location where this person conducted drug-trafficking activities.  The police investigated this but were unable to achieve what could be described as a positive outcome as a result of their investigations.

21.  The question as to what extent the defendant’s assistance to the police can be a mitigating factor was considered in the Court of Appeal case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLR at page 88 and thereafter, and some directions were given as to the court’s approach to the provision of information to authorities and participation in government programmes to discourage drug-taking.  In this case, I am only concerned with the information to authorities.

22.  Whether a discount should be given to a defendant is said to be dependent on whether the assistance was of practical use, and practical use can encompass the kind of information which could potentially assist or had actually assisted the authorities. 

23.  In this case, the mitigation is based on the fact that the information could have potentially assisted, in that it gave what is said to be sufficient of a description to have assisted the police in locating an activity of drug trafficking taking place.

24.  The fact is that the assistance came to no end result, but that is not necessarily a reason for denying the defendant some small discount for this form of assistance.

25.  I consider that what the defendant has provided here should entitle him what would be described as a small additional sentencing discount.  To that end, I will reduce the starting point by a further 3 months’ imprisonment to reflect that.

26.  The defendant is of course entitled to a one-third discount from that figure.  That figure is 51 months’ imprisonment. The discount is 17 months for his plea of guilty, which leads to a final sentence of 34 months’ imprisonment.

27.  That will be the order of the court.