HKSAR v. Chan Tsz Yeung

HCCC 280/2019

[2020] HKCFI 2724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 280 OF 2019

________________________

________________________

________________________

Transcript of the Audio Recording
of the Sentence in the above Case

________________________

COURT: The accused was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. It is alleged that he, on 12 October 2018, at 8th Floor, Far East Consortium Mongkok Building, No. 11 Nelson Street, Mongkok, Kowloon, unlawfully trafficked in a dangerous drug, namely 475 grammes of a solid containing 374 grammes of cocaine.

The accused tendered a plea of guilty to the charge which sets out the quantity of the drugs, as I have just outlined, before the magistrate at the committal stage and was committed to the Court of First Instance for sentence.

He first came before me on 21 November 2019 for sentence, having confirmed his plea and admission to the Summary of Facts which also sets out the quantity of drugs as stated in the charge and as read out to him at the committal stage. The matter was adjourned twice to today at the request of the parties for non-prejudicial statements to be taken from the accused.

A total of four non-prejudicial statements were taken in the interim from the accused, and the court was informed that he offered to provide a further NPS. It is submitted by Ms Hui on behalf of the prosecution that the prosecution takes the view that the information so far provided by the accused is not of any practical use and it is, in the circumstances, not in the interest of justice to indefinitely adjourn this matter. The court agrees. So it comes now for me to sentence the accused on the basis of the material before me.

Now, the facts as agreed by the accused are as follows. At around 11.25 pm of 12 October 2018, a team of plainclothes police officers laid ambush and saw the accused carrying a backpack entering the Far East Consortium Mongkok Building in Mongkok. The officers followed the accused up to the 8th floor of the building and intercepted the accused at the rear staircase.

Upon search, the officers found a red plastic bag containing a transparent plastic bag of cocaine inside the accused’s backpack. The accused was arrested and under caution he told the police that he had been instructed by a person named Ah Lung to collect the cocaine in Yau Ma Tei and that he was to sell the cocaine. He was promised HK$8,000 as a reward. The officers found HK$1,870, RMB8,480, two keys and two mobile phones (IPhone X and LG) on the defendant. He told the officers that the key was the door key of his home at Room H8, 7th floor of the building.

The police thus proceeded to the Room together with the accused and gained entry using the key. A house search was conducted and the police found in the Room the following items: a plastic bag containing 450 grammes of a powder which did not contain any dangerous substances, a digital scale, a metallic bowl, spoon, 17 empty resealable plastic bags, a box of disposable gloves, 18 white plastic cups and several rental receipts.

The accused was further cautioned whereupon he admitted using the packaging paraphernalia to pack the cocaine into small bags for selling. He had been the registered tenant of the Room since 15 August 2016.

Upon analysis, the drugs seized from the accused were confirmed to be a total of 475 grammes of a solid containing 374 grammes of cocaine. The retail value of the cocaine was estimated to be in the range of HK$530,000 to HK$700,000.

Urine test was later conducted on the accused on 15 October, which is three days after the offence, and the defendant was tested negative for cocaine residue. By agreeing to the Summary of Facts, the accused now admits that he possessed the whole lot of drugs for the purpose for unlawful trafficking.

Accused’s Background

The accused is now 31 years old and was educated up to Secondary 5 in Hong Kong. He was divorced and has a son now age 7. He used to work as a scaffolding worker before March 2018, earning around $20,000 to 30,000 a month, and he was the sole breadwinner of the family. At the time of the offence, he was unemployed because of injury to his right leg - a torn cruciate ligament.

The accused had been brought up in a single-parent family by his mother since he was three years old. His mother worked hard as a saleslady to raise him. Because of the hard work, his mother’s health condition has deteriorated over the years and she suffers from various disease - cardiac disease, ischemic stroke, neuralgia and, I am informed, a diagnosed Uterus Tumour. The mother has the court’s sympathy, and it is said that the accused committed the present offence in order to earn quick money to take care of his mother. Some handwritten brief medical reports and medical slips have been produced to the court as regards the mother’s medical condition.

The accused also has a younger half-brother who is a delivery worker suffering from Kawasaki disease.

It was said on his behalf that the accused was good at sports in school and had been a model student initially whilst he was in Secondary 1 and Secondary 2. He only went astray in Secondary 3.

He has three previous criminal convictions for fighting in public place in 2012, triad-related offences in 2014 and criminal damage in 2016, which I note are all unrelated to drugs.

Mitigation

Now, in mitigation, it was realistically said on his behalf that the strongest and perhaps the only mitigating factor is his plea at the earliest opportunity at the committal proceedings. Further, it is said that the defendant’s mother’s sickness as well as that of his younger brother are matters that the court should take into account.

As to the circumstances and the reasons why he committed the present offence, it is suggested in mitigation that that was because of his serious leg injury and his inability to work as a scaffolding worker anymore. The court was informed that by the time the accused had no income and could only depend on his savings, and by October 2018, his savings were almost gone and he needed money for his living. His application for public assistance was unsuccessful and he sought help from his friend who asked him to do trafficking of cocaine for HK$8,000. He succumbed to such an invitation, and it now falls on him to bear the consequence - and the consequence his family and, in particular, his mother would bear.

The defendant indicates that he regrets for what he had done and he said he promises the family not to do that again. He said he would like to take the opportunity of his inevitable incarceration to pursue study. He asks for leniency from this court.

Four letters of mitigation have been submitted to the court, including one from his mother and one from the defendant himself, and in summary, these letters of mitigation portray the defendant as having a healthy upbringing with good academic aptitude. It is unfortunate that financial burden and the lure of quick money brought about his downfall. It is said that the defendant is now truly remorseful and begs to be given a chance so that he can further his studies and become a better person on his release.

Sentencing principles and tariffs

The sentencing principles and tariffs in respect of trafficking-in-dangerous-drugs cases have been well-settled, and these sentencing tariffs reflect the court’s serious view of offences of such nature. The tariff that is applicable to trafficking in cocaine is derived from the Court of Appeal’s decision in HKSAR v Lau Tak Ming & ors [1990] 2 HKLR 370, a tariff case for heroin but which is confirmed to be also appropriate for cocaine (see Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 and HKSAR v Abdallah [2009] 2 HKLRD 437).

According to the applicable sentencing tariffs, quantity between 200 and 400 grammes of cocaine would attract a starting point for sentence of between 12 and 15 years.

And as the Court of Appeal held in Lau Tak Ming, within the suggested bands, factors which the sentencing judge may probably take into account are -

i. The profit which, because of adulteration, the place of ultimate sale, or otherwise, that may reasonably be expected to be derived from trafficking in the quantities of drugs involved;

ii. The number of packets;

iii. The type of mixture containing the narcotic;

iv. The degree of involvement of the offender; and

v. His previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

The Court of Appeal in Lau Tak Ming also added that “if there exists a clear record or a plea, then the sentencing court may take one or both such factors into account when arriving at what it considers to be the proper discount.” That said, whether those factors do avail the accused must be set against the gravity of the offence in question - especially where there was a large quantity of drugs involved.

Application of the sentencing principles

On a strict mathematical approach, given the quantity of cocaine seized in this case, 374 grammes, the appropriate starting point is one of 14 years 7 months.

Taking into account the various factors set out in Lau Tak Ming as mentioned above, including that there was one packet of drugs involving substantial amount, the defendant’s involvement as a courier and his personal and family circumstances, I am prepared to adopt a slightly reduced starting point to one of 14 years 6 months, namely deduct 1 month.

The defendant pleaded guilty at the committal stage. He is therefore entitled to the full one-third discount, thus reducing the sentence to one of 9 years and 8 months’ imprisonment (see HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, para 211).

There are no other realistic mitigating factors. The final sentence that the court would impose on the accused is thus one of 9 years 8 months’ imprisonment.