HKSAR v. Tang Wai Leung

DCCC 752/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 752 OF 2015

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Reasons for Sentence

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1.The defendant in this case has pleaded guilty to two charges of trafficking in a dangerous drug.

2.The drug in question in the 1st charge is 1.09 grammes of heroin hydrochloride, and in the 2nd charge, a further quantity of 8.03 grammes of heroin hydrochloride, and 1.17 grammes of methamphetamine hydrochloride, commonly known as “Ice”.

3.The defendant has agreed the facts and I have convicted him.  The facts are fairly simply stated.  It involved a police operation on 5 June 2015 at the defendant’s home in Castle Peak Road in Yuen Long.

4.He was arrested outside his flat and searched, and the drugs in the 1st charge were found on him in his trouser pocket in a resealable plastic bag.  He said that those drugs were for his own consumption.

5.Then a search warrant was executed in respect of the defendant’s flat, and further drugs were found inside.  The drugs in the 2nd charge were found in a metal box, but separately packed.  The heroin - that is, the 8.03 grammes of heroin hydrochloride - was found in two resealable plastic bags.  A further bag was found containing the methamphetamine.  Also found were three electronic scales and further resealable plastic bags containing other bags.

6.The defendant claimed at the time that all those drugs were for his own consumption.  He later conducted a video‑recorded interview where he made more detailed admissions about that.  Its relevance today is that he said he consumed about a gramme of heroin No 4 every day by injection.  The defendant also said that the “Ice” - that is, the methamphetamine - was consumed with a bottle.

7.At the time he was unemployed and lived on CSSA of about $3,000 a month.

8.The drugs themselves were valued at $9,664.

9.The defendant clearly by his plea accepts that he was in possession of drugs for the purpose of unlawful trafficking in them. In mitigation he says that he would consume about half the drugs and sell the other half.

10.The defendant has admitted his antecedents in court.  He is 45 years old, and he is single; lives alone, and is apparently separated from his broader family.  In the past he has worked at various employments:  hair stylist, cargo worker.  He was on CSSA at the time of his arrest.

11.The defendant’s criminal record shows he has been a long-term drug addict.  He has a total of 27 previous appearances in court and previous convictions.  He has a number for possession of dangerous drugs.  They date back to 1984.  Following a familiar pattern, he has been fined, sentenced to imprisonment, and also sentenced to periods in drug addiction treatment centre, particularly towards the end of the 90s - in 1998 and year 2000.  He was also sentenced back to drug addiction treatment centre in 2004 and 2005.  Since then he has been sentenced to imprisonment for his drug addiction, most recently in November 2011, when he received an 8‑week sentence for possession of a dangerous drug.

12.The defendant says in mitigation he is a long‑term drug addict.  The prosecution accept this.  Clearly they are right, based on the records in front of me.

13.The defendant does have one previous conviction for trafficking in a dangerous drug back in 2003.  It could be an aggravating factor in this offence.  It is now some 12 years old.  I shall not actually treat it as aggravating the sentence to be imposed in this case because of its antiquity.

14.In terms of mitigation, the defendant prays in aid his plea of guilty, also the fact that part of the drugs - he says up to 50 per cent - would be for his own consumption.  Of course, this would only be a rough estimate, but clearly it is a factor that is relevant to sentence in this case.

15.Now turning to the approach to sentencing, there are in fact two drugs to be dealt with here.  There is 1.90 grammes of heroin in the 1st charge, and a further 8.03 grammes of heroin in the 2nd charge, leading to a total of 9.12 grammes of that drug.  In the 2nd charge there is a further separate quantity of 1.17 grammes of methamphetamine hydrochloride.

16.I propose to take what is described as the combined approach towards sentencing for these drugs.  That would appear to be relevant when calculating the overall total sentences to be imposed.

17.In terms of sentencing, I would not describe the quantity of “Ice” as being significant in this case.  The total combined quantity of drug is 10.29 grammes of narcotic, and if I treat that as the narcotic heroin hydrochloride, that would place it in the sentencing tariff of between 10 to 50 grammes, which is 5 to 8 years’ imprisonment.  Clearly, it is at the lowest end of that tariff band, so the total of drug in both charges would warrant a starting point for sentence beginning at 5 years’ imprisonment, which is 60 months.

18.From that starting point there are to be deductions.  The first deduction would be for the defendant’s consumption of the drug itself.  That is a ground and a basis for deduction from the starting point.  There is authority to say that a deduction for this can range between 10 to 25 per cent of the original starting point.  Given the defendant’s long-term drug addiction, one would assume that he is heavily addicted and would consume more as a result of that.  Both the figures proposed by the defendant and the figures adopted by the court must, of course, be somewhat rough and ready, because they must be estimates.

19.However, I consider the deduction from that 60 months’ imprisonment which is the overall total would be in region of 20 per cent, which would be 12 months.  That leads me to a figure of 48 months’ imprisonment, which is now the starting point, from which the one-third deduction will be made.

20.That gives me an overall figure or a total figure on both charges, to be apportioned between the two charges, of 32 months’ imprisonment.  I am going to approach that as follows in respect of the individual charges:

On Charge 1 - that involves the trafficking in the small quantity of heroin hydrochloride - I take a starting point at 24 months’ imprisonment. After deduction for self-consumption, that will be 18; and then a deduction of one-third takes me down to 12 months’ imprisonment on Charge 1.

On Charge 2, the deductions are actually the same as on the overall starting point. That is, the starting point of 60 months reduced to 48, and then down to 32 for plea of guilty. By my calculation of the overall starting point for both charges, that would mean that the sentences should be served concurrently.

21.So the sentencing is as follows:

Charge 1, 12 months’ imprisonment;

Charge 2, 32 months’ imprisonment.

Sentences to be served concurrently; total, 32 months’ imprisonment.