HKSAR v. Tin Oh

HCCC 385/2017

[2018] HKCFI 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 385 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Tin Oh, was charged with one count of conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 and section 159A and 159C of the Crimes Ordinance, Cap 200. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts disclose that on 15 January 2017, the defendant was inside Room 901 of Silka Far East Hotel at the Castle Peak Road. When the fire alarm went off, the defendant did not open the door when the hotel staff noticed the room was full of smoke. The hotel staff broke down the door and found the defendant sitting on the bed holding a burning tissue paper box. On the floor, there were transparent resealable plastic bags. The hotel staff told the defendant to put out the fire where upon the defendant said he would only do so after the hotel staff had gone out of the room. The hotel staff did so and the defendant locked the door.

Police was called, the defendant refused to let the police into the room. The police forced open the door and found behind the door a chair and a bed blocking the doorway. The defendant was lying naked on the bed. The defendant appeared to be high and struggled with the police. He later calmed down. The police found a total of 352 transparent plastic bags containing powder scattered inside the room.

Later, analysis confirmed the quantity to be 72.95 grammes of cocaine. The street value was $74,492.

There were also 192 empty resealable plastic bags. The defendant admitted upon inquiry that the white powder was ‘Coke’ and he bought them for his own consumption. The police located a car key and the defendant admitted the car key was to a private car UJ3507 parked in Tsuen Wan. The defendant was arrested for trafficking in a dangerous drug and he remained silent under caution.

Later, at the Tsuen Wan Police Station, the defendant attended a video-recorded interview and he admitted he agreed to distribute the dangerous drug for a friend called ‘Luen Mo’ as he owed money to a finance company and wanted to make quick money. He himself was also a habitual drug abuser abusing both cocaine and ketamine. Luen Mo had told him that a car would be arranged for him with the dangerous drug inside. The defendant located the car and found the dangerous drug inside. He dared not to deliver the dangerous drug when he saw so many packets and started to consume some in the car. Afterwards, he became fearless and decided to steal the dangerous drug. He drove the car to Tsuen Wan and went to book a room in the said hotel and consumed the dangerous drug.

Background and Mitigation

The defendant is 32 years of age with no previous conviction. His counsel, Mr Lam Shun-chiu, informed me that the defendant had worked in different industries and his last job was a crane operator. The defendant became unemployed in 2016 and owed debts to financial companies. He had toyed with dangerous drug on and off for a long time prior to the offence. He was recruited by a friend Luen Mo and agreed to deliver the dangerous drug. It was a one-off transaction. When the defendant found out the large quantity, he became scared and decided to withdraw from the agreement.

Mr Lam submitted that the conspiracy only lasted for less than 24 hours. The defendant brought the dangerous drug to the hotel for the purpose of consuming them, not to deliver them as previously agreed with Luen Mo. When the defendant was arrested and admitted to the Lai Chi Kok Remand Centre, his urine sample showed positive result for cocaine.

In mitigation, Mr Lam stressed that the defendant is a first offender and he withdrew from the agreement within a very short time. The circumstances of the offence put this case in the lower end of the band of 8 to 12 years. As the defendant intended to consume the bulk of the dangerous drug in this case, Mr Lam asked this court to give the defendant a discount in line of the authorities submitted and the cases were the Queen v Chung Kam Fai [1993] 1 HKCLR 178, HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

Consideration and Reasons for Sentence

The defendant was convicted of his own plea of count of conspiracy to traffic in a dangerous drug. According to section 39 of Cap 134, any person convicted of conspiracy to commit an offence under this ordinance shall be liable to the penalty prescribed for that offence. So for an offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to a life imprisonment and a fine of $5 million.

In the case Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the sentencing guideline laid down in the Queen v Lau Tak Ming [1990] 2 HKLR 370 should apply for the trafficking of cocaine. The Court of Appeal in the case of Queen v Chang Chen Liu Sa [1995] 1 HKCLR 69 and the case of HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 confirmed such an approach. The cocaine involved here was 72.95 grammes. According to the guidelines, trafficking between 50 to 200 grammes of cocaine, the starting point is one of 8 to 12 years. The quantity of 72.95 grammes is towards to the lower end of this band.

On the facts admitted and from the surrounding circumstances, I accept that the defendant did intend to consume the bulk of the cocaine. The appropriate starting point for 72.95 grammes of cocaine for a first offender is one of 8 years. After taking into account the particular circumstances of this case and on the authorities cited, that is the case of Cheuk Kin Man and Chow Chun Sang, in particular the latter, I am of the view that a 25 per cent reduction is proper to arrive at the appropriate starting point. So the starting point is therefore one of 6 years. The defendant pleaded guilty at the committal stage and is therefore entitled to a full one-third discount for his plea. I do not see any other grounds to further reduce the sentence.

So for the offence of conspiracy to traffic in a dangerous drug, the defendant is sentenced to 4 years’ imprisonment.