HKSAR v. Tsang Chi Leong

DCCC 331/2018

[2018] HKDC 1023

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 331 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 9.16 grammes of a solid containing 8.15 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 9:15 p.m. on 27 December last year the defendant boarded taxi KC 1029 at Prince Edward Road near Portland Street.   At the time the defendant was not carrying anything.

3.The defendant asked the taxi driver to go to Block 5 of Lei Muk Shue Estate.  On arrival a male boarded the taxi and spoke to the defendant for about one minute and then left. 

4.The defendant then asked the taxi driver to take him to the Golden Computer Arcade in Sham Shui Po.  On arrival another male boarded the taxi and asked the taxi driver to continue driving.  Shortly afterwards the male alighted from the taxi.

5.The defendant then asked the taxi driver to go to the Dorsett Hotel in Kwung Tong. On the way the taxi was stopped at a police road block.  The defendant, who was holding a brown envelope and appeared nervous, was asked to alight from the taxi.

6.The police found inside the envelope a re-sealable plastic bag inside which was 47 small re-sealable plastic bags containing the cocaine.  

7.Under caution the defendant said the cocaine was for his own consumption.  In a subsequent video recorded interview, the defendant said, inter alia, that he shared the cost of the cocaine equally with two friends, who would take turns to collect the cocaine.  That day was the defendant’s turn to collect the cocaine. 

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chan both in court and in his written submission together with the defendant’s mitigation letter and a letter from his parents and St Stephen’s Society.  

9.I take into account that the defendant is only 20, 19 at the time of the offence.  The defendant told the police he has been taking cocaine since 2015.  The criminal record reveals that in 2013 a condition of probation was that the defendant go to St Stephen’s Society for 12 months indicating that he had been taking drugs earlier than 2015.

10.Section 109A of the Criminal Procedure Ordinance[2], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

11.Mr Chan does not ask that I call for any reports.  Being a drug addict it is most unlikely the defendant will be suitable for admission to a Training Centre.  Notwithstanding the young age of the defendant I am satisfied that the only appropriate sentence is a sentence of imprisonment.

Starting point

12.The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].   Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment. 

13.On a purely arithmetical approach a starting point of just over 4 years and 5 months’ imprisonment would be appropriate for trafficking in 8.15 grammes of cocaine. 

Own use

14.The defendant claims that one-third of the cocaine was for his own consumption.  The prosecution adopts a neutral position as to whether any of the cocaine was for the defendant’s own consumption. 

15.Taking into account the urine test on admission to Lai Chi Kok Reception Centre was positive for cocaine; the defendant appears to have been taking drugs for a number of years and that he told the police in some detail that one-third of the cocaine was for his own consumption, as indicated in court I am prepared to accept that up to one-third of the cocaine may have been for the defendant’s own consumption.    

16.In deciding how much weight should be attached to the fact some of the cocaine may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[5], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[6] and HKSAR v Liu Ming Sze cited by Mr Chan[7].

17.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[8].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

18.I accept one-third is a significant proportion.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied taking a starting point of 4 years and 5 months’ imprisonment that the starting point should be reduced by 5 months to one of 4 years’ imprisonment, which is equivalent to a discount of almost 10%.

19.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 8 months’ imprisonment.