HKSAR v. Tse Yeung Sang

DCCC 920/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 920 OF 2016

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 50 years) came before me on 6 March 2017, facing one charge of Trafficking in dangerous drugs (“Charge 1”) and another charge of resisting police officers in the due execution of their duties (“Charge 2”).

2.As a result of plea bargaining, I was informed that the prosecution was contented that Charge 2 could be left on the court file if defendant pleaded guilty to Charge 1 and was convicted thereof.  As a result, the defendant pleaded guilty to Charge 1.

3.The particulars of the trafficking charge avers that the defendant:-

“...on the 29th day of June, 2016, at Portland Street, near Dundas Street, Mongkok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 3.19 grammes of a crystalline solid containing 3.12 grammes of methamphetamine hydrochloride and 26.50 grammes of a mixture containing 20.04 grammes of heroin hydrochloride.”

Facts

4.This is a simple stop-and-search case.  According to the re-amended Summary of Facts which has been admitted by the defendant, he was stopped and searched by police at about 5:03 am on 29 June 2016 at Portland Street near Dundas Street, Mongkok.  Upon body search, the following items were found:-

(a) On the hook of his necklace, one cloth bag containing two transparent resealable plastic bags containing suspected dangerous drugs (“Exhibits 1 and 2”).

(b) At the waistband of his underwear, one large transparent resealable plastic bag containing eight transparent resealable plastic bags containing 80 pellets of suspected dangerous drugs (Exhibit 3).

(c) Also at the waistband of his underwear, one large transparent resealable plastic bag containing two transparent resealable plastic bags containing, respectively, 20 pellets of suspected dangerous drugs (Exhibit 4) and 47 pellets of suspected dangerous drugs (Exhibit 5).

5.Apart from the suspected dangerous drugs, there were also cash of HK$1,348.90 and three mobile phones.

6.After arrest, the defendant admitted under caution that the drugs belonged to him.  He also admitted that he tried to flee as he was afraid that the police would find the drugs on him.

7.The suspected drugs were later analysed by the government chemist, and it was subsequently confirmed that Exhibit 1 contained 3.19 grammes of a crystalline solid containing 3.12 grammes of methamphetamine hydrochloride; Exhibit 2 contained 2.31 grammes of a mixture containing 1.76 grammes of heroin hydrochloride; Exhibit 3 contained a total of 80 packets containing 13.1 grammes of a mixture containing 9.92 grammes of heroin hydrochloride; Exhibit 4 contained a total of 20 packets containing 3.29 grammes of a mixture containing 2.48 grammes of heroin hydrochloride; and Exhibit 5 contained 47 packets containing 7.80 grammes of a mixture containing 5.88 grammes of heroin hydrochloride.

8.The total drugs seized were therefore 3.19 grammes of a crystalline solid containing 3.12 grammes of methamphetamine hydrochloride and 26.50 grammes of a mixture containing 20.04 grammes of heroin hydrochloride.

9.The estimated street value of all the drugs seized was approximately HK$19,184.

Records and the background of the defendant

10.According to the criminal record, the defendant had appeared in court on no less than nine occasions between 1996 and 2016.  He had in the past altogether seven drugs-related records, including one similar record of trafficking back in 2001 when he was sentenced in the District Court.  His last conviction was a possession record when he was sentenced in the Magistrate Court to Drug Addiction Treatment Centre in August 2016.

11.Defendant was educated up to primary level in Hong Kong and according to the mitigation advanced by his solicitor, Mr Fu, the defendant worked as a part-time car-cleaning worker, earning about HK$6,000 per month. His wife is now aged 43 and she is a housewife.  The couple have a daughter of 7 years old who is now studying in a primary school.  The family was living on the CSSA, had an income of about $6,500.

12.Mr Fu told the court that formerly the defendant had worked as a graveyard worker, earning an income of about $20,000 per month.  Due to some injury in the waist and the right leg, the defendant ceased to work as such and became a part-time cleaning worker.

13.In mitigation, Mr Fu urged the court to accept that among all the drugs seized in the present case, Exhibit 1 and Exhibit 2 were actually dangerous drugs which is for the purpose of the defendant’s own consumption. 

14.In relation to this mitigation, Miss Yuen, public prosecutor for the prosecution, has fairly accepted that they have no evidence to rebut the claim that Exhibit 2, which was of heroin in nature, was for the purpose of the defendant’s own consumption.  However, the prosecution questioned the validity of the claim that Exhibit 1, the “Ice” in question, was also for the purpose of the defendant’s self-consumption.

15.Because of this query, I have invited Mr Fu to consider calling the defendant to testify on this matter.  However, Mr Fu informed the court that there was evidence in the form of a DATC report and also urine test report when the defendant was arrested and received into the Lai Chi Kok Reception Centre which can show that the defendant was also abusing heroin as well as “Ice”.  For this reason, he sought an adjournment from the court to produce those evidence.

16.After consideration, I am of the view that those evidence, if accepted, would be a favourable consideration to the defence’s claim for self-consumption. I therefore granted the adjournment and the case was adjourned to today. 

17.This morning, Mr Fu produced to the court for perusal a number of documents, including a probation officer’s report of the defendant, a DATC report of the defendant and also a urine test result of the defendant when he was received into the reception centre after the present arrest. 

18.I am not going to go through the reports in details.  Suffice it to say that all the reports and the urine test result pointed to the direction that the claim by the defendant that he had also abused “Ice” was supported by evidence.  To say the least, there was presence of morphine and methamphetamine in the defendant’s urine when he was tested.  As a result, this morning Miss Yuen has fairly and, in my view properly, conceded that they are not going to dispute the claim by the defendant that he was also an “Ice” user.  

Sentencing consideration

19.Trafficking in dangerous drugs is of course a very serious offence, one which needs to be deterred and anyone who was involved in this criminal activity would be expected to be dealt with severely by the court.  The defendant should also know better because, as said, he had been involved and convicted in the same offence before.  In 2001, he had been sentenced to 5 years and 3 months in the District Court.  Although the court had sympathy for the conditions of the defendant’s wife and the young daughter, the Court of Appeal has said so many times before in authorities that family circumstances virtually play no part in cases involving serious matters such as the present.

20.In this case, it involved two different kinds of dangerous drugs.  One is heroin and one is “Ice”.  In the case of heroin, according to the case of Lau Tak Ming & Another [1990] 2 HKLR 370, for a quantity between 10 to 50 grammes of heroin, the tariff sentence is between 5 years to 8 years’ imprisonment.  And according to HKSAR v Tam Yi Chun (No. 2) [2014] 4 HKC 256, for the quantity of “Ice” up to 10 grammes, the sentencing tariff is said to be between 3 to 7 years’ imprisonment.  Therefore, if one looks at the present quantity of “Ice” in this case involved, which is about 3.12 grammes, according to the tariff for “Ice”, the sentence would be about 51 months’ imprisonment.  

21.The two kinds of drugs are obviously different in terms of potency and governed therefore by two different tariffs.  When I approach the sentence of these two quantities of drugs, I will use the combined approach as often it is said to be more likely to lead to a correct overall sentence. 

22.In this case, although in terms of potency, “Ice” is more serious drugs than heroin, however, the bulk of the quantity is heroin.  In the case of HKSAR v Wong Kin Kau (unreported), CACC 269/2009, the Court of Appeal has suggested how the court should deal with different quantity of the two different drugs by comparing them according to their different tariffs. 

23.According to the tariff that I have just spelt out, one can see that 51 months’ imprisonment of heroin is about the sentence for 7.5 grammes of heroin.  Therefore if we convert the quantity of “Ice” into heroin, according to the method suggested in Wong Kin Kau, on that basis, the defendant should be sentenced as if he had been in his possession a total of 27.54 grammes of heroin by combining the two drugs together.  If one uses this consideration and according to the tariff of heroin, which is of the majority quantity of drugs, one can immediately see that the proper starting point for the present quantity of drugs should be about 75 months or 6 years and 3 months.

24.There is no evidence, according to the prosecution, that the drugs had been used to mix together to a cocktail to enhance their potency, and therefore in my judgment, there is no basis for a further increase of the starting point on this ground.

Self-consumption

25.The defence has raised the mitigation that part of the drugs in the present case is for the purpose of the defendant’s self-consumption.  The Court of Appeal has recently in the case of HKSAR v Liu Ming Sze CACC 103/2016 made it plain that the discount of 10% to 25% for self-consumption as stated in the often-cited case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 only applies when the portion of self-consumption is significant.

26.In this case, as said, after converting the quantity of “Ice” into heroin, Exhibit 1 and Exhibit 2 together represent an equivalent of 9.26 grammes of heroin which is about one-third of the overall quantity of dangerous drug in the present case.  In this case, based on the evidence submitted by the defence, I am satisfied that the defendant was not only a heroin but also an “Ice” habitual user.  The prosecution has already stated that they are not going to and they are not in a position to rebut the claim that Exhibit 1 and Exhibit 2 are for the purpose of the defendant’s self-consumption.

27.Therefore, I come to the conclusion that I will further reduce the starting point on the ground that part of the drug, which is about one-third, is for the defendant’s self-consumption.

28.I reminded myself that I cannot lose sight of the fact that although Exhibit 1 and Exhibit 2 were for the purpose of self-consumption, possession of dangerous drug is by itself also an offence, and because of the latent risk involved, they also carry a penalty. In the end, I consider that the proper reduction from the starting point is about 9 months which is slightly more than 10% of the basic starting point.  On the other hand, there is no other basis for any further reduction other than the customary one-third discount on account of the plea.

29.In the end, after reduction for the purpose of self-consumption and also the one-third reduction, this defendant is sentenced to 44 months’ imprisonment or 3 years and 8 months’ imprisonment.