HKSAR v. Tsoi Man Chun and Another

HCCC 23/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 23 OF 2015

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REASONS FOR SENTENCE

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1.Tsoi Man-chun and Tsoi King-hung are father and son. They both appeared before me for trial on an indictment charged with various drug offences. At the outset of the trial, the father pleaded guilty to two counts of trafficking in a dangerous drug and one count of possession of a dangerous drug (Counts 2, 3 and 5 on the amended indictment). On one of the trafficking counts he was jointly charged with his son (Count 5 on the amended indictment). The son proceeded to trial on that count for which he was found guilty by a majority verdict of the jury (Count 1 on the re-amended indictment).

2.The facts of the case against the two are fairly straightforward. 

3.Both the father and the son are drug addicts.  The father has many prior convictions for drug and drug-related offences dating back to 1992.  The son also has prior convictions, commencing in 2004, for violence and in 2011 for possession of drugs for which he received a drug addiction treatment centre order.

4.On 18 May 2014, the father was stopped by police for a routine check at Lung Gut House in Wong Tai Sin.  The police found on the father 19 packets of heroin in red and green pellets consisting of a total of 3.63 g of a mixture containing 2.62 g of heroin and one resealable plastic bag containing 0.29 g of a crystalline solid containing 0.28 g of methamphetamine hydrochloride, commonly known as Ice.  Also found on the father was a quantity of cash in the sum of $2,560.

5.The father admitted to the police that he was trafficking in the heroin which relates to the trafficking offence contained in Count 2 and that the Ice was for his own consumption which relates to the possession offence contained in Count 3.

6.The next day on 19 May 2014, the father took the police to Room 1305 at Kam Lam House in Kowloon Bay, the family flat.  There the police found in the son’s bedroom a quantity of drugs consisting of Ice and ketamine and in a cabinet in the living room equipment for smoking drugs and a quantity of resealable plastic bags contained in an iPhone box.  The father admitted that the drugs were his and when the son was confronted about the drugs and the equipment he told the police that they were his father’s and he had put them away for him.  The son later in an interview with the police retracted what he had said, saying that he was confused at the time.  The drugs found in the son’s bedroom were in a resealable plastic bag on top of a cardboard box on a cabinet.  Inside the bag were five smaller resealable plastic bags, four of which contained Ice and one contained ketamine.  One of the bags had a tag on it with the name “Ruby” written on it.  During the interview with the police the son was shown this bag with the tag on it and he initially said that he wrote out some English letters for his father but later said he had no recollection about the tag. 

7.The prosecution put its case against the son on the basis that he jointly with his father trafficked in the drugs by storing them or possessing them for the purpose of trafficking.  The prosecution pointed to the quantity of drugs involved, the quantity of resealable plastic bags which would be used for packaging drugs as seen by the way the drugs that were found were packaged and that one of the bags of drugs had a tag with a name on it, which indicated that it was meant for the named person.  The total drugs found in the son’s bedroom were 12.68 g of a crystalline solid containing 12.34 g of Ice and 3.59 g of a powder containing 2.55 g of ketamine.

8.I will deal with the sentencing of the father first.  As I said the father has many prior convictions for drug offences.  He is 60 years of age and it would appear at the time of the offence he had a serious drug addiction problem which had lasted for 20 years.  He has been a bad role model for his son, who is in his early 20s and has probably been exposed to his father’s drug problem all his life and that has in all likelihood led him into a similar life.  I will bear this in mind when I come to sentence the son. 

9.Mr Paul Leung who appears on behalf of the father has submitted in mitigation that his plea of guilty to the trafficking of the drugs found at the flat was on the basis that the drugs were for his self consumption and he would also give the drugs to his son to consume.  In other words, the father is admitting to trafficking on the basis that he gave the drugs to his son.  The giving of drugs to anybody is abhorrent but the giving of drugs to your own child is inexplicable.  On this issue of trafficking, I note that the drugs had on one of the bags the name of “Ruby” which would indicate that the bag was to be given to a person by that name.  There is no meaningful mitigation that can be advanced on behalf of the father.  He has been unemployed since 1994 and constantly in trouble with the law due to his drug addiction.  He has ruined the lives of those around him, not to mention the serious harm that he would have caused to others by trading in the drugs that he has now admitted.

10.In Count 2 the narcotic content of the total drugs was 2.62 g of heroin which was broken up into 19 pellets for trade to other drug users.  It is not a large quantity of drugs and according to the tariff case of R v Lau Tak-ming and Ors [1990] 2 HKLR 370 a starting point of 24 months’ imprisonment should be imposed.  The father is entitled to a one third discount for his plea of guilty, which reduces the sentence to 16 months’ imprisonment.  In Count 3 the quantity of Ice was very small, namely 0.28 g, and the prosecution by taking a plea to possession for the drugs have accepted it was for self consumption.  I therefore impose a sentence of 6 months’ imprisonment which I reduce by one third for his plea of guilty to 4 months’ imprisonment.

11.The next sentence that I have to impose relates to both the father and the son in relation to the drugs found at the flat. There were a total of 12.34 g of Ice and 2.55 g of ketamine.  The tariff for the quantity of Ice involved is 7 years and 2 months’ imprisonment after trial: Attorney General v Ching Kwok-hung [1991] 2 HKLR 125.  The tariff for the quantity of ketamine involved is 2 years and 4 months’ imprisonment after trial: Secretary for Justice v Hii Siew-cheng [2008] 3 HKC 323.

12.There are two ways the courts have approach sentencing an offender for trafficking in different drugs.  There is the individual approach where the court calculates the starting point to be adopted for the narcotic content of the individual drug according to its relevant tariff case which is then added up with appropriate adjustment made if the sentence is excessive for the overall offending.  There is the combined approach where the court adds up the narcotic content of similar serious drugs according to the tariff case for the more or most serious drug with some allowance, if any, being made for any less serious drugs by enhancing the sentence.  In the present case the individual approach would result in a sentence of 9 years and 6 months’ imprisonment, and the combined approach would result in a sentence of 7 years and 3 months’ imprisonment.  The significant discrepancy between the two is due to the relatively high starting point imposed on small quantities of ketamine according to its tariff case.  I think in the circumstances of this case the combined approach is the most suitable.

13.I consider the father to be the most culpable in the joint charge with his son.  However, it would seem that the son got involved with his eyes wide open and knew exactly what he was doing.  But it does not change the fact that the father was a bad influence on the son and the most culpable out of the two in this case.  He is young and the product of a poor and neglected upbringing, having a father who has been a drug addict for all of his life.  He left school at level three and has been unemployed since 2010 but Mr Roderick Wu on his behalf has submitted that he did do casual work throughout this time. 

14.I also accept that some of the Ice would have been used for self consumption.  That was evident by the smoking equipment for drugs, including two Ice pots, which were found in the cabinet in the living room.  I will therefore make an adjustment to the sentence to reflect the fact that not all the drugs were for trafficking, although it is still the case that the drugs were in the possession of the father and son and that there was a risk that some of the drugs might have found their way into the hands of others, bearing in mind the array of drug smoking equipment that was found in the cabinet of the living room and the fact that people would come into the flat from time to time.  The adjustment therefore will only be slight.

15.As stated above the father faces a sentence of 16 months’ imprisonment on Count 2 and 4 months’ imprisonment on Count 3 which makes a total sentence of 20 months’ imprisonment.  I considered whether to make an adjustment to the sentence taking into account the totality principle but decided against it because the offences were distinct, one relating to trafficking in heroin and the other possessing Ice probably for his own use and that the combined sentences are not excessive for the overall offending involved. 

16.As also stated above on the joint charge of trafficking of the drugs found in the flat, I impose a starting point of 7 years and 3 months’ imprisonment after trial.  I have accepted that some of the drugs would have been used for self consumption but given the other factors that I have mentioned, the adjustment downwards will be only slight and I reduce the sentence to 7 years’ imprisonment. 

17.In relation to the father, he will receive a one third discount for his plea of guilty on Count 5 and this will result in a sentence of 4 years and 8 months’ imprisonment.  The combined sentences of Counts 2 and 3 of 20 months’ imprisonment and Count 5 of 4 years and 8 months’ imprisonment is 6 years and 4 months’ imprisonment.  Taking into account the totality principle, I will adjust the sentence to 6 years’ imprisonment.  I will do this by maintaining the sentences on Counts 2 and 3 and reducing the sentence on Count 5 to 4 years and 4 months’ imprisonment which will be consecutive to the sentences on Counts 2 and 3.  In other words, all the sentences of Counts 2, 3 and 5 will be consecutive to each other.  Accordingly, the father is sentenced to 6 years’ imprisonment. 

18.In relation to the son, he faces a sentence of 7 years’ imprisonment after trial for Count 1.  The court has discretion to impose a lighter sentence if the offence were committed through force of circumstances and particularly where the defendant is young and vulnerable to the influence of others.  I consider that the father had a malign influence on the son and was the more culpable in the commission of this offence.  In the circumstances, I will reduce his sentence to 6 years’ imprisonment.  

19.Accordingly, both the defendants are sentenced to 6 years’ imprisonment.

Mr Richard Grant Turnbull, counsel on fiat, for HKSAR

Mr Paul Leung, instructed by Alan Ho & Co., assigned by Director of Legal Aid, for the 1^st defendant

Mr Wu Kam Fun Roderick, instructed by K.L. Leung & Co, assigned by Director of Legal Aid, for the 2^nd defendant