HKSAR v. Tang Wai Leung
Read the full judgment text of DCCC 880/2018 on BabelCite. This District Court judgment was delivered on 8 May 2019.
1. The defendant is convicted upon his own guilty plea of the first charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap. 134, and the second charge of possession of poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of Cap. 138. The dangerous drugs involved in the first charge were 1.36 grammes of methamphetamine hydrochloride and 3.29 grammes of cocaine. The poison involved in the second charge was 7 tablets containing silde
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DCCC 880/2018 [2019] HKDC 630 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 880 OF 2018 -----------------------------
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----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- INTRODUCTION 1.The defendant is convicted upon his own guilty plea of the first charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap. 134, and the second charge of possession of poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of Cap. 138. The dangerous drugs involved in the first charge were 1.36 grammes of methamphetamine hydrochloride and 3.29 grammes of cocaine. The poison involved in the second charge was 7 tablets containing sildenafil. FACTS 2.At about 9:40 pm on 23 June 2018, the police intercepted the defendant near lamppost AJ0819 on the pavement outside Exit D, MTR Long Ping Station. Search of the defendant’s handbag found the following items:-
3.Under caution at scene, the defendant said the dangerous drugs were for self-consumption. 4.At the material time, the total estimated street value of the dangerous drugs seized was about HK$5,430. PREVIOUS RECORD AND ANTECEDENT 5.Prior to the commission of the present offences, the defendant had 37 previous convictions resulting from 28 court cases. Out of the 37 convictions, the defendant had 3 previous convictions of trafficking in dangerous drugs sentenced in March 2003 and December 2015. He had 13 previous convictions of possession of dangerous drugs. 6.The defendant was born in March 1970. He is now 49 years old. He received education up to Form 3 level. He is divorced. Before he was arrested for the present case, he was a hairstylist. MITIGATION 7.Counsel for the defendant Mr Lee adopted his written Skeleton Submissions for Mitigation dated 3 May 2019. 8.It was submitted that the 1.36 grammes of ICE seized were for the defendant’s own consumption whereas the 3.29 grammes of cocaine seized were for trafficking. The prosecution had no objection to that. 9.In his written Skeleton Submissions for Mitigation, Mr Lee submitted the relevant sentencing authorities and enunciated various starting points derived from the absurdity test, the conversion test and the ratio test. Mr Lee invited this court to adopt the combined approach to reach an appropriate starting point, and give an appropriate sentencing discount for the self-consumption factor. SENTENCE 10.There were two kinds of dangerous drugs involved in the present case. For trafficking in methamphetamine hydrochloride, the sentencing guideline was laid down in Attorney General v Ching Kwok-hung[1] and HKSAR v Tam Yi-chun (No.2)[2]. For trafficking in cocaine, the sentencing guideline was laid down in R v Lau Tak Ming[3] and Attorney General v Pedro Nel Rojas[4]. 11.In the present case, methamphetamine hydrochloride is the more serious drug. In this connection, it was stated in paragraph 9(3) of the judgment in HKSAR v Yip Wai-yin & Anor[5] that:-
12.As submitted by Mr Lee, trafficking in 1.36 grammes of methamphetamine hydrochloride and 3.29 grammes of cocaine would attract respective starting points of 3½ years’ imprisonment and 3 years’ imprisonment. 13.Having carefully considered the Skeleton Submissions for Mitigation, I agree that the combined approach is the appropriate approach to sentence fairly, realistically and in a commonsense manner. 14.I bear in mind the sentencing principles for trafficking in cocktail drugs laid down in HKSAR v Yip Wai-yin & Anor[6], HKSAR v Cheng Yat-ming[7] and HKSAR v Chan Yuk-leong[8]. In Chan Yuk-leong, the Court of Appeal observed that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features. One is the ability of the trafficker to cater to a wider market. The more important feature is the effect on users of combinations of dangerous drugs. 15.Having carefully considered the submissions made by Mr Lee, I adopt a starting point of 42 months’ imprisonment for trafficking in 1.36 grammes of methamphetamine hydrochloride, and adjust it upwards by 4 months for the 3.29 grammes of cocaine. It results in 46 months’ imprisonment. 16.It was submitted by Mr Lee (and not objected to by the prosecution) that the 1.36 grammes of ICE seized were for the defendant’s own consumption. In this connection, I bear in mind the Court of Appeal’s decision in HKSAR v Liu Ming Sze[9]. Taking into account that possession of 1.36 grammes of ICE carries a sentence in any event and the latent risk factor, I am satisfied that the starting point should be reduced by 5½ months to one of 40½ months’ imprisonment. The reduction of 5½ months represents an approximately 12% discount from the original starting point of 46 months. 17.I give a further one-third discount to the defendant for his timely indication of guilty plea. There being no other valid mitigating factors justifying further reduction in sentence, the sentence is 27 months’ imprisonment for the first charge. 18.For the second charge, I adopt a starting point of 1½ months’ imprisonment. The sentence is reduced to 1 month’s imprisonment after giving one-third discount for the defendant’s guilty plea. 19.For totality, the sentences in both charges are to run concurrently. The total sentence is therefore 27 months’ imprisonment.
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Cases cited in this judgment