HKSAR v. Chan Tsz Chung

DCCC 919/2019

[2020] HKDC 924

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 919 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant today.   

3.In summary at around 22:35 hours on 30 May last year the police executed a search warrant at an unnumbered tin house next to No. 18 Tan Kwai Tsuen Road in Yuen Long.  When the police entered the house they found the defendant and two other males inside.

4.On a mahjong table the police found forty-six plastic bags containing a total of 39.83 grammes of cannabis in herbal form and twenty-nine plastic bags containing a total of 5.55 grammes of a solid containing 5.23 grammes of cocaine. 

5.The defendant was found in possession of a key to the house, $314 and two mobile phones. 

6.The estimated street value of the cannabis and the cocaine is $22,610.05.

7.Under caution the defendant said the drugs belonged to him and had nothing to do with his friends.

Mitigation

8.In passing sentence, I have carefully considered the written and oral submissions of Ms Wong, including that the defendant aged 33, is single, lives with his mother and younger sister and that prior to his arrest he was earning $20,000 per month as a car maintenance worker[2]. The defendant’s parents are in court today to show support for their son

9.Ms Wong is instructed that the defendant was delivering the dangerous drugs to earn money to feed his drug addiction[3]. Under caution the defendant said the drugs were for self-consumption.  Ms Wong confirms in court that the defendant admits all the dangerous drugs were for trafficking and that there is no claim for self-consumption.

10.The defendant says that he is determined to stay away from dangerous drugs and having been in custody for more than a year he has overcome his drug addiction[4]. 

11.I take into account that the defendant’s previous conviction for trafficking in a dangerous drug was in 2004 when he was 17[5]. The defendant has appeared in court on seven occasions since 2004, including for offences of possession of dangerous drugs in 2009, 2011, 2015 and 2017.    

Guidelines

12.The courts have equated for sentencing purposes cocaine with heroin[6].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[7].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

13.In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing cannabis resin[8]. Where the quantity of cannabis is under 2000 grammes sentence is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

14.I am satisfied the proper starting point after trial for 5.23 grammes of cocaine is 3 years and 6 months’ imprisonment.  I agree with Ms Wong that the combined approach to sentence is appropriate with an upward adjustment to take into account the quantity of cannabis[9].

15.I am satisfied the amount of herbal cannabis 39.83 grammes is not insignificant whereby this may be disregarded in determining the starting point.  In considering culpability, the starting point must reflect the defendant was trafficking in two different drugs. 

16.In HKSAR v Yau Ka Ming the Court of Appeal said that the starting point for trafficking in ice and cocaine was to be enhanced by 3 months for the unlawful trafficking at the same time in 27.42 grammes of herbal cannabis[10].   

17.I am satisfied for trafficking in 39.83 grammes of herbal cannabis the starting point should be enhanced by 3 months to 3 years and 9 months’ imprisonment. 

Commission of offence on bail

18.The defendant last appeared in court in TMCC  999/2018 on 31 May 2019, the day after he was arrested for the present offence.  I have had the opportunity of reading the case papers.  The defendant was sentenced to a total of 4 months’ imprisonment for offences contrary to the Road Traffic Ordinance committed in April 2018.

19.The defendant was given court bail on 30 April 2018 to appear in court on 4 June 2018.  The defendant failed to appear in court.  After his arrest for the present offence the defendant was brought to court the next day and sentenced to 2 months’ imprisonment for failing to surrender to court, which sentence was ordered to be served consecutive to the sentence of 4 months’ imprisonment.

20.The present offence was therefore committed while the defendant was on court bail for the offences contrary to the Road Traffic Ordinance, albeit the defendant had failed to attend court. 

21.Ms Wong asks the court not to enhance the sentence for the commission of the offence on bail by reason of the fact that he has already been sentenced for failing to surrender to court and the offences for which he was given bail are not similar.

22.Commission of offences on bail is separate and distinct from failing to surrender to court.  The commission of offences while on bail is an aggravating feature of sentence.  I enhance the starting point by 3 months to 4 years’ imprisonment.

23.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 8 months’ imprisonment.