HKSAR v. Tsang Tsui Wah

HCCC 24/2019

[2019] HKCFI 2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 24 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 111 grammes of a mixture containing 88.6 grammes of heroin hydrochloride and also a second count of trafficking in a dangerous drug, namely 93.3 grammes of a mixture containing 74.3 grammes of heroin hydrochloride.

The facts are that police intercepted the defendant in the staircase of a building and upon a search of him, four plastic bags containing the dangerous drugs as named in the 1st charge was found on his person inside a sling bag he was carrying. He was arrested and cautioned and he admitted that he was taking the heroin back for packing into pellets in order to sell. Also found on the accused was keys and cash of over $6,000 and three mobile phones, and the accused was escorted to the premises in Kam Wah Building, and the set of keys was used to open the doors to the premises.

Upon a search of the premises, four plastic bags containing the drugs in Count 2 were found on a tray. Also found was an electronic scale and a rent receipt with the accused’s name and cash of HK$32,000. Upon arrest and caution, the defendant admitted that the heroin found in the premises were for packing and the tools found were used for the packing, and subsequently under caution, the accused gave an account of how he would collect the heroin and how he would package the heroin and then place the heroin at places according to the instructions of a person called “Fat Man Gun”. He said he would get $600 for handling each bag of heroin and admitted that the cash of $6,780 was the salary he received for his drug activity. The defendant claimed that the amount $32,000 found in his premises was his savings.

The estimated street value of the heroin seized in Charges 1 and 2 amounted to a total of just over $187,000.

In mitigation, Ms Cheng pleads for leniency in that the defendant came to Hong Kong at the age of 19 and was a casual labourer in logistics and has been in and out of prison for a long time since 1991. In fact, looking at his criminal record, the defendant has some 24 previous convictions of which four are drug-related, including three for trafficking.

The defendant is aged 53. The only mitigation I can see is that the defendant had pleaded guilty in the Magistrates’ Court to the charges and he had made a full confession to the police. As Ms Cheng correctly identified, the sentencing guidelines as recommended by the Court of Appeal in Lau Tak Ming [1990] 2 HKLR 370 pointed out that for trafficking in between 50 to 200 grammes of heroin, a guideline sentence of 8 to 12 years’ imprisonment after trial is recommended.

In the 1st count, the trafficking was of 88.6 grammes of heroin and I would adopt a guideline sentence of 9 years’ imprisonment, and giving the defendant one-third off for his early plea, the sentence would be one of 6 years’ imprisonment. For the 2nd count, the starting point I would adopt is 8½ years and giving the defendant one-third off would reduce the sentence to 5 years and 8 months.

Having considered the totality principle, I will sentence the defendant in the following way: on Count 1, he is sent to prison for 6 years; on the 2nd count, he is sentenced to 5 years and 8 months. 2 years will be consecutive to the sentence in the 1st count and 3 years 8 months will be concurrent to the sentence in the 1st count. So the defendant will go to prison for a total of 8 years.