HKSAR v. Tong Hon Ko

HCCC 112/2018

[2018] HKCFI 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 112 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the Facts

The defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of Trafficking in a Dangerous Drug on 26 March 2018 and was committed to this court for sentence.

This morning, he confirmed his plea and admitted the Summary of Facts. Briefly, in the afternoon of 1 August 2017, the defendant was intercepted by the police while he was standing on the pedestrian pavement of Tsing Yi Road. At the time, the police found the defendant acting suspiciously and they therefore approached him for a search. However, the defendant turned and fled from the police who gave chase.

Eventually, the defendant was subdued, and as a result of a search conducted on him, 234 resealable transparent plastic bags were found inside the handbag which the defendant was carrying.

Inside the plastic bags were the drugs particularised in the count, that is, a total of 49.03 grammes of a solid containing 46.04 grammes of cocaine.

The estimated value of the drugs was about HK$43,000.

Defendant’s Background and Mitigation

The defendant is aged 44 and is single. He was born in Hong Kong and received education up to Form 1 level. Between 1991 and 1999, it was said that the defendant worked in a telecommunications company. Afterwards, he took up various part-time jobs in restaurants and construction sites.

The defendant claimed to have started working in a friend’s company with a monthly income of around HK$11,000 after his release from prison in January 2016. Prior to this offence, the defendant had 14 criminal convictions, including a Trafficking in a Dangerous Drug conviction, in respect of which he was sentenced to a term of 52 months’ imprisonment in November 2013. As said, the defendant was then released in January 2016.

In mitigation, Mr Hui for the defendant, first submitted that the defendant intended to keep one bag containing about 2.8 grammes of the drug for self-consumption and for sharing with his friends.

Mr Hui also informed the court that the defendant committed this offence as he was about to have a wedding banquet in February 2018. Thus, the defendant would like to earn more money and he foolishly succumbed to handling this drug deal.

In the course of submissions, Mr Hui also handed up to the court a letter written by the defendant himself and letters written by his fiancé and former teacher and school mate. All described the defendant as a caring person who looks after people well. In the defendant’s own letter, he expressed his remorse towards the commission of this offence.

Now, in respect of the claim that one bag of the drugs was for the defendant’s own use and for sharing with friends, I told Mr Hui that at that stage, and based on the matters disclosed and submitted, I was not prepared to accept such a claim. When asked if there would be further evidence adduced before me to support the claim, or if there would be further submissions made, Mr Hui replied that there was none.

Sentencing Considerations

The tariffs for trafficking in cocaine are the same as those for heroin. See AG v Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370. For trafficking between 10 and 50 grammes of cocaine, a term of 5 to 8 years’ imprisonment is called for.

Having considered the facts of this case and the amount of the drugs involved, I take the view that the appropriate staring point should be one of 7½ years.

For the following reasons, I completely reject the claim made by the defendant that he would keep one bag of the drugs for his own consumption and for sharing with friends.

Firstly, in the Summary of Facts, there was a reference, paragraph 8, to the defendant having in his possession all the dangerous drugs for the purpose of unlawful trafficking. The defendant admitted all those facts.

Secondly, in the defendant’s own letter to the court, he made full admission and explained that he committed the offence because he wanted to organise a better wedding banquet. There was no mentioning whatsoever in that letter of the defendant of keeping one bag of the drugs for his own consumption or for sharing with friends.

Thirdly, at the time the defendant was spotted, he was standing on the pedestrian pavement and there were a total of 234 plastic bags of cocaine in his possession. All those drugs were kept inside the same compartment of the defendant’s handbag. No separate storage was made for any of those packs. I am sure that, as admitted by the defendant, he had all of the drugs in his possession for the purpose of unlawful trafficking.

The claim that he intended to keep one bag for his own consumption and for sharing with friends was without any basis.

Now, even if it might be the case that the defendant would have kept one bag for his own use and for sharing with friends, simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment. Therefore, even assuming that there might be a small amount of the drugs which the defendant kept for his own consumption, that would not affect the sentence in this case in any material way.

In short, I do not consider I should exercise my discretion to grant the defendant any reduction because of this claim for self-consumption. See for example, HKSAR v Kong Tat Lung CACC 27/2016 (11 August 2017, unreported).

Now, the defendant pleaded guilty at the earliest opportunity. I would give him the full one-third reduction for his plea. But other than the defendant’s plea, there is nothing in this case which would warrant any further discount in sentence.

7½ years, reduced by one-third is 5 years, and this is the sentence I impose on the defendant for the count of trafficking in a dangerous drug, to which he pleaded guilty.