HKSAR v. Tsang Yu Ping

HCCC 250/2020

[2021] HKCFI 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 250 OF 2020

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

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COURT: The defendant, Tsang Yu-ping, faced one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty to the charge before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts admitted by the defendant relevant to this charge disclose that on 30 April 2019, the defendant was intercepted for investigation when he came out of the premises in Mei Shing House, Shek Kip Mei Estate.

A search of the premises was conducted. From a bedside table the following were found: a glass pot connected with a straw; an electronic weighing scale; a box containing four plastic bags containing a total 42.84 grammes of a crystalline solid containing 42.31 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. Under the bedside table, four bags containing a large number of resealable bags were located, and on the bed, a roll of tissue containing a plastic bag containing 0.33 gramme of herbal cannabis was found.

The defendant was arrested and cautioned for trafficking in dangerous drugs. The defendant stated, “Ah Sir, these 2 ounces of dangerous drugs were purchased from Mongkok today and are intended for reselling to others to earn some living expenses.”

The retail price of the ‘Ice’ was $24,505 and the herbal cannabis was $168, totalling $24,673.

The defendant admitted that he was in possession of the dangerous drugs for the purpose of unlawful trafficking.

The defendant was born in 1988 in the Mainland. He is 32 years of age. He is not a man with a clear record, having appeared in court on seven occasions with eight convictions, two of which were for possession of dangerous drugs.

Mr Luk King-wang, counsel for the defendant, gave more details about the defendant’s background. I was informed that the defendant came to Hong Kong from the Mainland with his mother in 2009. He had worked as a waiter, a cleaning worker. He had worked in the construction field and in the logistic field but he was unemployed prior to his arrest. When he was working at the airport as a casual logistic worker, he was able to earn around $7,000 a month and he gave about $3,000 to support his mother and his stepfather. But prior to the offence, he was out of job and was in financial difficulties. He was therefore enticed to make quick money by trafficking dangerous drugs.

I was told the defendant was truly remorseful and plans to enrol in a steel reinforcement course run by the CSD with the aim to obtain a certificate so as to enable him to obtain a job easier upon his release.

Consideration for the sentence

Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of HK$5 million and life imprisonment.

Generally speaking for the trafficking of more than one kind of drug, there are two sentencing approach open to the sentencing judge. One is an individual approach where each component in a cocktail of drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment is made to the overall sentence. And the second one is the combined approach, where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account the significant quantities of the other less serious drugs in terms of their potency.

In the circumstances of the present case, as the drugs are disparate in quantity and potency, on the face of it the individual approach would appear to be more appropriate but I will first consider the appropriate starting point of each drug first.

The Court of Appeal has set down guidelines for the trafficking of ‘Ice’ and there is also guideline for the trafficking of cannabis. Now, with the reference to the quantity involved in this case, the guidelines are as follows. ‘Ice’, 42.31 grammes, so the starting point is between 7 to 11 years because the guideline case is the case of Tam Yi Chun, 10 to 70 grammes, the range.

Now for the herbal cannabis, in this case it is 0.33 gramme. In the case of Chor Lui, it was said that for trafficking less than 2,000 grammes of herbal cannabis, the benchmark tariff sentence is 4 months and that is with reference to the tariff for trafficking cannabis resin which has an average concentration of tetrahydrocannabinol about four times higher than the average found in the herbal cannabis, which was mentioned in the case of Tuen Shui Ming and that is trafficking under 2,000 grammes should be up to 16 months.

Now, in coming to my decision as to appropriate starting point for each drug, of course I bear in mind all the circumstances of the offence, the quantity involved and the role played by the defendant. For the 42.31 grammes of ‘Ice’, I am of the view that a starting point of 9 years would be appropriate. For the herbal cannabis, bearing in mind the quantity involved was only 0.33 gramme, a starting point of 4 months is appropriate.

I now need to consider the overall starting point. Bearing in mind the amount of herbal cannabis is small, even if the herbal cannabis is to be treated as ‘Ice’, it will not make any difference to the overall starting point. So I will therefore adopt a total starting point of 9 years.

Although the defendant is not a person with a clear record, this is the first time he is convicted of an offence of trafficking in dangerous drugs. I will not enhance the starting point because of his criminal record.

The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. Whilst I appreciate the defendant’s desire and his plan to start afresh, there are no other grounds for me to further reduce the sentence.

So for the offence of trafficking in dangerous drugs, the

defendant is sentenced to 6 years’ imprisonment.