HKSAR v. Tsang Kim Kwan

DCCC 662/2018

[2019] HKDC 653

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 662 OF 2018

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REASONS FOR SENTENCE

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Background and facts

1.The defendant pleaded guilty to two charges of trafficking in a dangerous drug before me this morning.  The facts admitted by the defendant revealed that on 8 May 2018, at around 9:25 pm on a road near bus terminal, Tin Yuet Estate in Tin Shui Wai, patrolling police saw defendant driving his private car alone.  They intercepted the defendant’s car and conducted enquiries with the defendant.  Since the defendant acted suspiciously, police apprehended him and escorted him away from his car.

2.Upon search on the defendant, police seized some cocaine hidden at the waistband of the defendant’s trousers, namely two plastic bags containing a total of 0.43 grammes of a solid containing 0.39 grammes of cocaine.  Police conducted initial search of the car and saw scattering cash inside the defendant’s bag which was placed inside his car.  Police then summoned the drug detection dog to assist the search.  As a result, police removed the control panel at the driver’s seat and found a compartment behind it.

3.Police then found the following drugs, namely a) tissue paper wrapping seven plastic bags containing 3.46 grammes of a crystalline solid containing 2.41 grammes of ketamine and b) a plastic bag inside which were 27 plastic bags containing a total of 5.78 grammes of a solid containing 5.23 grammes of cocaine. 

4.Inside the defendant’s car, police further seized from inside the defendant’s bag, cash HK$4,400 and two mobile phones.  The cash, $4,400, were in different denominations and were placed chaotically inside the defendant’s bag.  Police also found an additional HK$2,455.50 cash scattered inside the car at different places.  Upon arrest and under caution at the scene, the defendant claimed self-consumption for the two bags of cocaine seized on him.  The defendant was the car’s registered owner. 

5.The estimated street value of the cocaine seized in respect of Charge 1 was about HK$466.  The total estimated street value of the cocaine and ketamine seized in respect of Charge 2 was about HK$7,976. 

6.On 8 May 2018, the defendant was in possession of the cocaine seized on him for the purpose of unlawful trafficking.  He was also in possession of the cocaine and ketamine seized in his car for the purpose of unlawful trafficking. 

Mitigation

7.The defendant is aged 24 and single.  He was born in Mainland and came to Hong Kong when he was 4 years old.  He was educated up to Secondary 4 level.  He has three older brothers but only he himself lived with his parents in a public housing unit.  At the time of his arrest, he was a transportation worker earning about HK$11,000 per month. 

8.The defendant has one previous criminal conviction record in 2009 and the offence was possession of dangerous drug.  I note that the defendant was only 15 years old when he was sentenced to probation order for 12 months for this offence. 

9.The defendant has written a letter to court in which he stated that he had relapsed to drug addiction and therefore he was in need of money to cope with the living.  As a result, he committed the present offence.  He expressed his remorse and deep appreciation to his family members for their love and concern shown to him during his remand in jail custody.  The defendant believed that he has got rid of drug addiction and he is determined to fulfil his filial duties towards his parents after serving the sentence. 

Sentencing considerations

10.The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug.  The guidelines for trafficking in cocaine were laid down in HKSAR v Lau Tak Ming [1990] 2 HKLR 370 whereas the guidelines for ketamine were in SJ v & Hii Siew Cheng & Anor [2009] 1 HKLRD 1. 

11.Defence counsel, Mr Wong, has rightly pointed out that the 1st and 2nd charges faced by the defendant should be treated as representing one occasion of possession of the total amount of drugs, and the court should impose sentence on both offences for that total, making the sentences concurrent with one another. (HKSAR v Wan Lau Mei [2014] 4 HKC 75).

12.In respect of trafficking in a cocktail of drugs, the court will consider sentence by adopting either an individual approach or a combined approach.  In the present case it would be appropriate to adopt a combined approach.  The present case involves a total of 5.62 grammes of cocaine and 2.41 grammes of ketamine.  Since cocaine is a more potent drug than ketamine, the court may use the starting point for cocaine as the basis and make upward adjustment to reflect the narcotic content of ketamine. 

13.The sentencing tariff for trafficking up to 10 grammes of cocaine, the term of imprisonment should be between 2 and 5 years.  For the narcotic content of 5.62 grammes of cocaine, an arithmetic application of the tariff would result in a sentence of 3 years and 8 months. 

14.Defence counsel, Mr Wong, has kindly prepared a written submission with calculations of the terms of sentence applying the different methodology recognised by the Court of Appeal in the case of HKSAR v Chan Yuk Leong, (CACC 318/2013, unreported).  Mr Wong now clarifies that in applying the absurdity test the overall sentence for 8.03 grammes of cocaine should be 4.4 years. Mr Wong further submitted that in applying the conversion test the sentence is around four years, and in applying the ratio test the sentence is 4.2 years. 

Sentencing the defendant

15.In the present case, there are two trafficking offences where different quantities of dangerous drugs were found in the defendant’s possession on the same day but at different locations.  Taking into account all the circumstances of the case, including the fact that there were two kinds of drugs involved in the 2nd charge, in my view, the appropriate starting point for sentence of the defendant should be 4 years and 2 months; that is, 50 months. 

16.The defendant is entitled to the full one-third discount for his timely plea of guilty.  The sentence is therefore reduced to 33 months’ imprisonment. Having carefully considered all that was said on the defendant’s behalf in mitigation, I do not see any powerful mitigation which would warrant any reduction in sentence. 

17.In the circumstances, I will impose a sentence of 33 months for the 1st charge and the 2nd charge respectively, and the sentence is to run concurrently with one another.

18.You are to serve 33 months of imprisonment in respect of Charge 1 and Charge 2.  Defendant, you may sit down now.