HKSAR v. Tsang Ping Cheong (also known as Tsang Ho Yin)
Read the full judgment text of DCCC 159/2016 on BabelCite. This District Court judgment.
1. The Defendant has been convicted on his own pleas of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 18.70 grammes of a mixture containing 9.13 grammes of heroin hydrochloride and one count of possession of a dangerous drug, contrary to Section 8(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
Cites 2 cases
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DCCC 159/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 159 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.The Defendant has been convicted on his own pleas of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 18.70 grammes of a mixture containing 9.13 grammes of heroin hydrochloride and one count of possession of a dangerous drug, contrary to Section 8(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Facts 2.On 12th December, 2015, at around 9.33 a.m., Customs Officer 99108 intercepted the Defendant at the Customs Arrival Hall, Shenzhen Bay Control Point, New Territories when the Defendant entered Hong Kong. The Defendant was requested to place his belongings through an Ionic-Scan. The results of the scan indicated that the Defendant’s property was highly likely to contain heroin. The Defendant was then directed to a checking counter for a further search. At the counter, the Defendant put his hand into his right pants pocket. He was immediately told to stop and take his hand out of his pocket. Upon search by Customs Officer 98301, 1 paper packet containing suspected dangerous drugs was found in his right pants pocket. Customs Officer 99108 arrested and cautioned the Defendant – the Defendant fainted and had convulsions – an ambulance was called for the Defendant and the Defendant was taken to the Tuen Mun Hospital. The contents of the paper packet found from the Defendant’s right pants pocket was subsequently examined by the Government Chemist and found to be 0.07 grammes of a powder containing heroin hydrochloride i.e. the dangerous drugs the subject matter of charge 2. 3.At the Tuen Mun Hospital, under the supervision of Senior Customs Officer 88189 and with the permission of the Attending Doctor, Customs Officer 98301 conducted a personal search of the Defendant and found, among other things, 2 condoms, 2 smartphones, 3 sim card, 3 SD cards, cash $21,440.60 and RMB2,040. Upon subsequent medical examination and x-ray scanning, it was confirmed that there was a foreign object in the Defendant’s body – the Defendant was placed in a room by himself, guarded by Customs Officers 98301 and 13192. At 4.30 p.m. on 12 December, 2015, the Defendant excreted 1 packet, consisting of condom/plastic/paper wrappings, of suspected dangerous drugs. He was arrested and cautioned and said after caution that the packet was ‘Number 4’, after which he fainted. This packet was examined by the Government Chemist and found to be 18.70 grammes of a mixture containing 9.13 grammes of heroin hydrochloride, the dangerous drugs the subject matter of charge 1. 4.Movement records showed that the Defendant left Hong Kong via the Lok Ma Chau terminal at 11.15 p.m. on 11th December, 2015 and returned to Hong Kong via Shenzhen Bay Control point at 9.33 a.m. on 12th December, 2015. 5.The street value of the dangerous drugs seized from the Defendant was HK$13,946. Previous Convictions 6.The Defendant’s criminal record dates back to 1973. He has 38 previous convictions in 30 court appearances including one previous conviction for trafficking in dangerous drugs in 2006, a conviction similar to Count 1 herein and 7 previous convictions in 6 court appearances for the offence of possession of dangerous drugs, a conviction similar to Count 2 herein. Mitigation 7.The Defendant is now aged 59 years. According to the antecedent statement, he has completed lower secondary education in Hong Kong. He is divorced. He was unemployed at the time of his arrest. He claimed to be a drug addict, taking heroin and ice. He had started to use heroin when he was about 20 years old, and spent $150 each day on heroin which he smoked at home. Mr. Lam for the Defendant submitted that the Defendant was a long term drug addict, who in his current remand at Lai Chi Kok has come into contact with Christianity and is now genuinely remorseful for his misdeeds, as he has said in his letter submitted to the Court. Mr. Lam also submitted a letter in Chinese, with English translation, from the Department of Health wherein the Department of Health acknowledged receipt of the Defendant’s organ donation form Sentencing Considerations 8.The Defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the Defendant submitted that a third would be for his own consumption, being his reward for bringing the dangerous drugs in Count 1 into Hong Kong. Mr. Lee for the Prosecution very fairly said that the Prosecution did not take issue that some of the dangerous drugs would be for self-consumption and the Prosecution adopted a neutral stance – there was no evidence that the drugs in Count 1 would be for self-consumption. He accepted that it was clear that the Defendant was a drug addict. 9.As Mr. Lam has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370. The sentence follows the quantity of drugs. That would put the quantity in the Defendant’s possession for trafficking at the material time at the higher end of that spectrum, being 9.13 grammes of heroin hydrochloride, and would warrant a starting point of 4 years and 6 months (i.e. 54 months) imprisonment. In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121 (at Tab 3) the Court of Appeal held at p. 1126:
The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case. 10.I have taken into account that the Defendant is a drug abuser and that some of those drugs would have been for his own consumption. There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. I have borne in mind too that the Defendant was unemployed at the time of the offences. The Defendant brought these drugs into Hong Kong from China for the purpose of unlawful trafficking. The cross-border element must be borne in mind. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands. Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure. 11.Looking at those features of the case, I shall discount the starting point by 9 months – a discount of just over 16% - to reflect that some of the dangerous drugs were for the Defendant’s own consumption. I have decided that the appropriate starting point for this offence is therefore one of 3 years and 9 months’ (i.e. 45 months) imprisonment. 12.The Defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that. That is the only mitigation of weight before me. He is therefore sentenced to 2 years and 6 months’ (30 months) imprisonment on Count 1. 13.As to the second charge of possession of a dangerous drug, having regard to the quantity of heroin hydrochloride concerned and in view of the Defendant’s criminal record and his long-term drug dependency, the appropriate starting point is one of 9 months’ imprisonment. He is likewise entitled to a discount of one-third to reflect his plea to the charge, and is therefore sentenced to 6 months’ imprisonment on charge 2. 14.Mr. Lam for the Defendant has referred to HKSAR v. Ng Ka-wing, Kevin, CACC 563/1999, to support his contention that the sentence for Charges 1 and 2 should be served concurrently. In considering whether the sentences should be served concurrently or consecutively, I have borne in mind the totality principle of sentence, as well as the overall criminality involved. In all the circumstances of this case, a concurrent sentence would adequately reflect the Defendant’s overall culpability. I therefore order that the sentences on Charges 1 and 2 be served concurrently. 15.The prosecution seeks an order for the disposal of exhibits in terms of their written application submitted. The Defendant has not objection to this save for item 15 of the Prosecution application – HK$21,440.60 that was seized from his person during a search on him conducted at the Tuen Mun Hospital. The Prosecution submits that this money should be forfeited pursuant to Section 56(1) of the Dangerous Drugs Ordinance, Cap. 134. Although there is no direct evidence that these monies are the proceeds of trafficking, the Prosecution asks the Court to bear in mind that the movement records of the Defendant disclose that he departed Hong Kong for China at 11.15 p.m. on 11th December, 2015 and returned to Hong Kong at 9.33 a.m. on 12th December, 2015 – a period of less than 24 hours – there was no need for the Defendant to bring along so much money to China as he would not have had the opportunity to spend it. Also, the Defendant was unemployed at the material time – the source of the funds must be questionable and therefore these monies are liable to be forfeited. Mr. Lam for the Defendant submits that there is no evidence that these monies are in any way connected to the offences. He submitted the Defendant did not live alone and he kept all his money on his person for safe keeping. The Defendant did not object to the RMB2,040.00 (Item 16 of the Prosecution Application for forfeiture) being forfeited as these were funds that were used for the trip to China. 16.Section 56 of the Dangerous Drugs Ordinance, Cap. 134, provides:
17.There is no evidence that these monies were received or possessed by the Defendant or any person as the result or product of an offence under Cap. 134 or Cap. 405. Nor am I able to infer this as I am asked to do by the Prosecution. I therefore refuse the Prosecution’s application for the forfeiture of Item 15 on their application – this money of HK$21,440.60 will be returned to the Defendant. I make an order in terms of the Prosecution’s application for the disposal of exhibits in respect of items 1 to 14 and 16 to 18 on the Prosecution application.
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Cases cited in this judgment