HKSAR v. Tsang Kei Ching

DCCC 356/2018

[2018] HKDC 1486

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 356 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.At around 4:20 pm on 13 January 2018, the defendant was seen acting furtively and coming out from The Wings IIIA, Tseung Kwan O.  When being intercepted, the defendant attempted to run away but fell down.  He also dropped a bag.

3.Upon search, the bag was found to contain 47 plastic bags containing a total of 9.03 grammes of cocaine.  At that time, the defendant had in his possession three mobile phones, the key to his car and a resident card for The Wings IIIA.  He did not have any cash, Octopus card or bank cards on him. 

4.Under caution, the defendant stated that he bought the cocaine for self-consumption.

5.The estimated street value of the dangerous drug seized is HK$12,391.30.

6.House search of the defendant’s home at The Wings IIIA was conducted. Upon search, a plastic bag containing one electronic balance, 327 plastic bags, one pair of scissors and one folded poker card was found in the living room.

7.Urine sample obtained from the defendant on 16 January 2018 was tested positive for cocaine.

Mitigation

8.The defendant is aged 26, single and lived with his girlfriend prior to the arrest.  He worked as casual construction site worker since 2016.  He has clear record.

9.In mitigation, it was submitted that the defendant started taking cocaine about 6 months before the offence date.  He would take about 1 gramme per day.  On the offence date, the defendant bought the cocaine and returned home.  After he had parked his car, he waited for his friend at G/F of the lobby of The Wings and it was his intention to share the cocaine with his friend.  When police turned up, his friend ran away.  It was the defendant’s assertion that all the cocaine was for his self-consumption.  When I indicated that I was not satisfied that all the cocaine was for the defendant’s self-consumption and it appeared that most of it was for trafficking, counsel for the defence took further instruction from the defendant and confirmed that only half of the cocaine would be for self-consumption and the rest for selling to his friend.  It was further submitted that the plastic bags containing the cocaine was different from those found at the defendant’s home.  Upon the court’s inquiry with the prosecution, it turned out that the bags containing cocaine were similar to some of the bags found at the defendant’s home.  No evidence was called by the defence regarding the issue of self-consumption.

Sentence

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see R v Lau Tak Ming [1990] 2 HKLR 370).  For trafficking up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years.  Given the amount of drug involved is 9.03 grammes, I consider the appropriate starting point to be 4 years and 6 months.

11.Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption.  In the present case, upon the court’s inquiry, it was submitted that half of the drug seized was for the defendant’s own consumption.  I note the defendant’s urine sample was tested positive for cocaine and I accept that he is a drug addict.  Nevertheless, the fact of the case, in my view, does not support the allegation that a significant proportion of the drug found on him was for self-consumption.  It was alleged that the defendant bought the drug earlier that day prior to the arrest.  He returned to the building where he lived.  After he parked the car, instead of going up to his home and leaving most of the drug at home and taking only a small amount for sharing with his friend as he first alleged or taking only half of the amount for selling to his friend as he subsequently alleged via mitigation, he had all the drug with him at the time of arrest.  The plastic bags containing the drug were similar to some of the plastic bags found at the defendant’s home.  Further, the defendant intended to go out without any money on his person but only with 3 mobile phones and the key to his car.  In the circumstances, I reject the defendant’s allegation that half of the drug was for his self-consumption and no discount will be granted accordingly. 

12.Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence is reduced to 3 years’ imprisonment.

13.Apart from the defendant’s guilty plea, I do not see other valid mitigating factor justifying further reduction of sentence.  I hereby sentence the defendant to 3 years’ imprisonment.