HKSAR v. VIKRAMJEET SINGH

HCCC 512/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 512 OF 2014

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The defendant, aged 29, pleaded, yesterday, guilty to the 1st count of the indictment, some 30 minutes or so before the jury was due to be sworn. Twenty-four hours, or so, earlier he had indicated to me a plea of guilty to Count 2.

As matters presently stand, he must still receive the full discount for pleading guilty.

Clearly, by May 2014 the defendant was deeply involved, probably with two others, in trafficking drugs. He was entrusted to use an address which was not his own in which he was able to keep his supply of drugs.

The room inside a flat that he was using was fitted with a metal bar to prevent forced entry, and outside the flat there were cameras to record people who would approach the room. This was a well-guarded room.

When police, in due course, raided the room used by the defendant, it was found that he had no less than four types of drugs in his constructive possession which, it is plain, were intended for supply to others.

In terms of their narcotic weight, there were, on Count 1, 176 grammes of ketamine which, on its own, would give rise to a starting point after trial of 7½ years; 41 grammes of heroin hydrochloride which, similarly, would give rise to a starting point of 7 years and 6 months; the small quantity of cocaine, just 1.89 grammes, which would normally give rise to a starting point of about 2 years, is of little consequence in the context of this case; and also, 64.49 grammes of methamphetamine hydrochloride (“which I will call “Ice” for simplicity) gives rise to a starting point of 9 years and 9 months’ imprisonment after trial.

The 2nd count relates the 53.51 grammes of “Ice” which was in the defendant’s physical possession when he tried to escape from the police, and was caught after a chase on foot through various streets in Mong Kok until he was finally found at one of the entrances to the Mong Kok MTR and he went inside where he was duly arrested. That amount would give rise after trial on its own to a 9 year starting point.

The street value of all the drugs, which the defendant has admitted trafficking, was $121,212 at street value.

Obviously, following the Court of Appeal’s approach in HKSAR v Chan Hei Kam, and numerous decisions since that time, an overall starting point has to be arrived at which sensibly and fairly reflects the sentence to be imposed as if this was a single offence.

Taking the “Ice” in Counts 1 and 2, the combined narcotic weight is 118 grammes, and that after trial would call for a guideline starting point sentence of 10 years and 9 months’ imprisonment: I take that from R v Ching Kwok Hung [1991] 2 HKLR 125, as the new guidelines in HKSAR v Tam Yi Chun CACC 524/2011 did not come into effect until 9 June 2014 some five weeks after the commission of these offences.

The heroin guideline sentence under the R v Lau Tak Ming & Ors [1990] 2 HKLR 370, of 7½ years’ imprisonment for 41 grammes would equate with the guideline sentence for 20 grammes of “Ice”.

So adding this notional amount to the 118 grammes of “Ice” contained in the two counts of the indictment, this would give rise to an overall starting point of 11 years and 3 months. To this should be added a notional, albeit somewhat perhaps a lenient notional amount in terms of sentence, which I shall add to the 11 years and 3 months, making an overall starting point of 12 years’ imprisonment for all of the drugs involved in this indictment.

The matter does not stop there.

Found with the drugs at the flat was a copy of the defendant’s Form 8 recognisance. The defendant is no stranger to the courts, and in this context he was convicted on 28 March 2013 of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong, and for that offence he received a sentence ultimately of 13 months and 3 weeks’ imprisonment.

Before that he had been sentenced to 2 months for theft in 2009, and in 2012 he received a sentence of a week imprisonment for indecent assault. Twice he has been convicted of absconding on bail.

Now I am not going to repeat the comments with which I respectfully agree made by Zervos J in HKSAR v Sha Syed Arif HCCC 394/2014 concerning the abuse of hospitality an offence such as this represents.

In that case he followed the decision of the Court of Appeal in HKSAR v Sandagdorj Altankhuyah & Anor [2014] 1 HKC 206, a judgment which was handed down on 23 August 2013. Suffice it to say, Zervos J cited in the course of his judgment the words of Macrae J (as he was at that time) before enhancing the sentence for trafficking in dangerous drugs. Zervos J’s case happens to have been quite similar to the present case before me now.

At page 2012 in the Sandagdorj case, at paragraphs 20 and 21 in the judgment, this is what was said and which was cited by the Zervos J:

“The second matter which stands out from the facts of this case concerns the 2nd appellant. He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

As I have said, Zervos J, who cited that passage, was dealing with a case very similar to the present one which was a drugs case. But the point is exactly the same: obviously, trafficking in drugs is an offence which seriously affects the community at large.

In this case I propose therefore to enhance the overall sentence by a year on its starting point, making the sentence that the defendant would have received, after trial, one of 13 years in all.

There are two counts on this indictment and an appropriate sentence has to be found on each.

Your sentence on the 1st count of this indictment, after the usual discount for your plea of guilty, will be one of 6 years and 8 months enhanced by a further 8 months for the reason which I have given. Your sentence in all on that count will be one of 7 years and 4 months’ imprisonment.

On Count 2, your sentence is 6 years’ imprisonment enhanced by a further 4 months, making a total of 6 years and 4 months for that count.

In regard to the 2nd count of the indictment, 1 year and 4 months of the sentence is to be served consecutively to the sentence on Count 1.

In total therefore your sentence is one of 8 years and 8 months’ imprisonment. If you had, in fact, contested these charges your sentence would have been 13 years.