HKSAR v. Tsang Kin Lung

DCCC 400/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 400 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drugs involved are 18.38 grammes of a solid containing 16.15 grammes of cocaine, 0.69 gramme of a crystalline solid containing 0.68 gramme of methamphetamine hydrochloride (“Ice”) and 2.14 grammes of cannabis in herbal form.

Summary of facts

2.In the small hours on 24 September 2016 police set up a road block near Tai Kiu Tsuen Bus Stop, Route Twisk in Tsuen Wan, New Territories.  At about 3:10 am, a private vehicle SR 4920 (“the vehicle”) was intercepted and the defendant was sitting in the front passenger seat.

3.Upon search, a white cloth bag containing 23 bags of cocaine (4.42 grammes) and 1 bag of Ice (0.68 gramme) were found in the driver’s seat compartment.  A coin bag with 12 bags of cocaine (2.03 grammes) and 1 bag of herbal cannabis (2.14 grammes) were found under the driver’s seat.  Further, a blue water proof bag containing 46 bags of cocaine (9.70 grammes) were found in the middle on the rear passengers seat.  Lastly, cash HK$5,410.80 and two mobile phones were found on the defendant.

4.Government chemist subsequently confirmed that the contents of the substances were:-

(a) 18.38 grammes of a solid containing 16.15 grammes of cocaine;

(b) 0.69 gramme of a crystalline solid containing 0.68 gramme of Ice; and

(c) 2.14 grammes of cannabis in herbal form.

5.Under caution, the defendant said he was the owner of the vehicle and the items found in the vehicle.  In the subsequent video recorded interview, the defendant said that he was on a joy ride with his girlfriend at the material time.

6.The defendant was the registered owner of the vehicle.

7.It is estimated that the street value of the drugs is HK$21,421.80 in total.

Mitigation

8.The defendant is 41 years old and is divorced.  He has one previous conviction in 1993 which was a possession of dangerous drug conviction.  Before his arrest, he worked as a shopkeeper of a grocery store owned by his family. He lives with his parents, who are both in their 70s, his elder sister and his 11-year-old son.  He has a stable girlfriend who is co-habiting with him.  I was told that his girlfriend is also a divorcee with a 12-year-old son.  Both of them are supported by the defendant.  In addition, the defendant is paying maintenance to his ex-wife.

9.Defence submitted that the defendant is very remorseful now.  Though he has one previous conviction, he managed to stay away from trouble for more than twenty years.  As he is the sole breadwinner of the family, he needs to work to support his family.  Defence submitted that the defendant is a drug user and part of the drugs was for his own consumption.  However, defence was not able to tell the court how much of the dangerous drugs was for his own use.  To conclude, defence urged the court to sentence the defendant leniently.

Sentencing considerations

10.There is no doubt that “drug trafficking” is one of the most serious offences.  Any person who commits this offence should be under no illusion that the court will deal with him/her leniently and long-term imprisonment is to be expected even for fresh offenders. 

11.The charge involves three different types of drugs.  After considered all the circumstances of the case, I am of the view that the “combined approach” should be adopted in sentencing the defendant:  HKSAR v Yip Wai Yin and anor [2004] 3 HKC 367.

12.For trafficking cocaine, the Court of Appeal held in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that the tariffs for trafficking heroin in The Queen v Lau Tak Ming & others [1990] 2 HKLR 370 should apply to trafficking in cocaine.  For 10 to 50 grammes of heroin hydrochloride, the sentence should be imprisonment of 5 to 8 years.  For trafficking up to 10 grammes of Ice, according to Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, the sentence should be 3 to 7 years.  For herbal cannabis, following the tariff as suggested in Attorney General v Tuen Shui Ming and Another [1995] 2 HKCLR 129, the sentence for under 2,000 grammes should be about 4 months.

13.Considered the potency and quantities of the drugs involved, 16.15 grammes of cocaine will no doubt leads to the highest sentence and therefore should be the base of the sentence.  Considered all the circumstances, I am of the view that 5 years and 3 months is the appropriate starting point for 16.15 grammes of cocaine.  For the Ice and herbal cannabis involved, as the amount is very small and insignificant, I make no further adjustment.

14.Therefore, the overall starting point for the combined drug should be 5 years and 3 months.  After cross-checking with the various tests as set out in HKSAR v Chan Yuk Leong, CACC 318/2013, I am satisfied that the above starting point is appropriate.  As the defendant was unable to prove that a significant proportion of the dangerous drugs was for self-consumption, I decline to give him any discount in this regard: HKSAR v Liu Ming Sze, CACC 103/2016.

15.The defendant pleaded guilty to the charge at the first available opportunity and is entitled to receive a full one-third discount.  As a result, the defendant is sentenced to 3 years and 6 months’ imprisonment.