HKSAR v. Tang Tak Chun

HCCC 325/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 325 OF 2015

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

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COURT: The defendant pleaded guilty at committal on 31 July 2015 to one count of conspiracy to traffic in dangerous drugs. The case number was 324/2015. I will refer to this case as ‘324’. The second was a separate case of trafficking in a dangerous drug, the case number being 325/2015. I shall refer to that as ‘325’.

The cases were not suitable for consolidation, being entirely separate, but as a matter of convenience, it was appropriate that both cases should be dealt with at the same time for the purposes of sentencing.

Before me, the defendant confirmed his plea in each of the two cases and confirmed to the facts for each case to which he had pleaded at committal.

The first case in time was 324. The defendant met a Madam Cheung at a party in 1999. From January 2013, he offered her paid employment doing cleaning of various flats. On 18 September 2013, the defendant instructed Madam Cheung, by telephone, to clean the flat at Riviera Gardens and told her he would leave the flat key inside one of the freezers in the Wellcome Supermarket at Riviera Gardens.

Madam Cheung collected the key and was instructed to buy three boxes of mooncakes and to pack the cocaine, which was in the flat, in the mooncake boxes. Madam Cheung obeyed the instructions, took the cocaine from a drawer in the flat and when the three boxes proved inadequate for the quantity of cocaine, put the remainder into another cardboard box.

The defendant then instructed Madam Cheung to take all of the cocaine to the podium and leave it there so someone could collect it later. However, as Madam Cheung left the flat, she was intercepted by police.

The three mooncake boxes were confirmed by the Government Chemist to contain 670.39 grammes of a solid containing 330.44 grammes of cocaine. Twenty-eight plastic bags of drugs were hidden under the mooncakes. The fourth box held 26 plastic bags containing 596.17 grammes of a solid containing 329.5 grammes of cocaine. The estimated street value of this quantity was $1,797,391.

The defendant admits that he and Madam Cheung conspired to traffic in the cocaine.

Under the guideline set in HKSAR v Abdallah [2009] 3 HKLRD 437, a quantity of drug between 600 grammes and 1,200 grammes merits a sentence of 20 to 23 years. The narcotic quantity here is 660.39 grammes which would indicate a starting point at the lower end of the scale.

In case 325, the police carried out an operation near a village house at Tai Wai Village, on 3 December 2014. At 10.41 pm, police saw a man enter the house followed by a second man some 15 minutes later. They were later known as Chan Long-him and Choi Cheuk-hei. Chan and Choi left the house together at 11.43 pm and were intercepted. Chan was carrying a plastic bag inside which were two paper bags containing 28 transparent plastic bags with a substance which, when analysed by the Government Chemist, was found to contain 516 grammes of a solid containing 355 grammes of cocaine.

The police raided the premises and found the defendant was the only person in the house. They searched the house under a search warrant. On the floor in a small room in the house, they found dangerous drugs and dangerous drugs paraphernalia in full view. They were 65 pellets containing 1,020 grammes of a solid containing 715 grammes of cocaine, 25 pieces of a solid weighing 371 grammes containing 257 grammes of cocaine, 243 grammes of a solid containing 169.97 grammes of cocaine. The drug paraphernalia included packing materials and utensils as set out in the Summary of Facts. In the kitchen were containers, a sifter, and two spoons containing 0.3 of a solid containing 0.14 grammes of cocaine.

Under arrest and caution, the defendant admitted he had been caught red-handed, but told the police that Chan and Choi had nothing to do with it. He had just asked them to take the “ho lok” downstairs and they knew nothing. “Ho lok” is a term for cocaine.

In the defendant’s waist-bag in the bedroom, police found five keys which opened the house doors. Later in a video-recorded interview, the defendant told police he had obtained the dangerous drugs from a man called “Ah Wai”, a friend, and had taken them to the house where he was asked to package the cocaine. He did so.

Later, Chan and Choi came to his house for a chat. Ah Wai telephoned while they were there and asked the defendant to deliver the cocaine to someone at the local 7-Eleven store. As Chan and Choi were intending to buy snacks at the shop, he asked them to take the package of dangerous drugs with them. He said they did not know what the contents were.

In total, 1,635.32 grammes of a solid in a powder containing 1,142.3 grammes of cocaine was found on the premises. The estimated retail value of that cocaine at the time was $2,058,000. The defendant admits and accepts that he was trafficking in the cocaine seized. The total narcotic quantity in relation to case 325 was 1,497.3 grammes.

Under the Abdallah guidelines, a quantity of dangerous drug between 1,200 and 4,000 grammes attracts a sentence of 23 to 26 years’ imprisonment. The quantity of narcotic in this case requires a starting point at the lower end of the scale.

The defendant has a criminal record which began in 1993 and there are 17 items which encompass 19 separate charges together with three breaches of probation. The defendant’s first drug conviction for possession of dangerous drugs appears on 10 March 2003, with a similar conviction in 2005. In 2006, the defendant was convicted of trafficking and sentenced in the District Court to 14 months in prison. He was sentenced at the same time to a further 8 months in total for two minor drug offences and a breach of suspended sentence. The 8 months was ordered to run consecutively. His most recent conviction was for possession of dangerous drugs in 2011. Other offences recorded were mainly offences of dishonesty.

The antecedents statement, which is based on information given by the defendant, notes that he is 36 years old, his date of birth is 11 January 1979. He was educated to Form 1 level. His mother is aged 56. His father is dead. He is not married but resides with his girlfriend and 1-year-old son. I am advised that he is also responsible for his girlfriend’s daughter by another man.

After leaving school, he worked as an apprentice bartender, food delivery worker and apprentice cook. He was a casual decoration worker at the time of his arrest. He claims to have been abusing dangerous drugs for about six years.

On the last occasion in court, the defendant requested an adjournment of his sentencing so that he had an opportunity to liaise with the police in ways which might lead to his being given credit for co-operation, so that he could be given extra discount on sentence. It was not stated why the defendant waited so long to offer such co-operation to the police. Clearly, the request took his legal representatives by surprise.

It was also clear that such an offer was made almost a year after the events referred to in case 325 and over two years in case 324 and it was very likely to be worthless as any associated person involved with the offences would have gone to ground long since. However, I recognised that the defendant was facing a very lengthy sentence and that it was proper to grant the adjournment requested. Today I have been advised that there were no results which were relevant to this case and so sentencing proceeded.

The offence in each of these cases is extremely serious, involving, as each does, a substantial and extremely lucrative quantity of cocaine. One can infer that the defendant was much more than a courier. He is clearly, if not the actual owner of the drugs, at least a high-ranking administrator of a profitable drugs enterprise. He did not learn the lesson that one might have hoped he would after his sentence for trafficking in 2006.

The conspiracy charge in 324 falls to be sentenced as for the substantive offence of trafficking. There was no cogent mitigation which avails the defendant other than the pleas of guilty entered in each case and he is entitled to the full one-third discount for his guilty plea for each offence.

I have seen the reasons for sentence in respect of the defendant’s co-conspirator, Madam Cheung So-sze, who was dealt with in High Court case 127/2014 and who pleaded guilty to trafficking in respect of the same facts as in 324. Madam Cheung was given a discount of 50 per cent to take into account not just the usual one-third discount for plea but a further discount for her co-operation post-arrest, which the sentencing judge believed was instrumental in encouraging this defendant to plead. When sentencing, Zervos J commented:

“It is apparent from the facts agreed by the defendant’s co-accused, her evidence was a crucial factor in the plea and conviction of her co-accused.”

That is this defendant. The judge took a starting point of 20 years and 3 months and the final sentence was 10 years and 1 month.

In case 324, following the Abdallah guidelines, I adopt a starting point of 20 years and after discounting it by one-third, I impose a sentence of 13 years and 4 months.

In case 325/2015, again following the Abdallah guidelines, the narcotic quantity attracts a sentence in the sentencing range of 23 to 26 years’ imprisonment. I take a starting point of 24 years and after discounting it by one-third, impose a sentence of 16 years.

The offence in case 324 precedes case 325 by some 15 months. Each case has different assisting personnel, a different modus operandi and different drug quantities, so there is no really justifiable basis for ordering the sentences to run concurrently, whether in whole or in part. It does not arise from the same transaction or course of conduct. The main purpose of drug sentencing is deterrence and that aim would not be met by giving what is in effect a further large discount by making the sentences wholly or partially concurrent.

However, there has to be some hope given to a prisoner for his future rehabilitation and release and, for that reason, I order that 4 years of the sentence in case 325 runs concurrently with the sentence in case 324, making a total sentence of 25 years and 4 months.