HKSAR v. Tang Tsz Wang Kenneth and Another

DCCC 714/2020

[2021] HKDC 310

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 714 OF 2020

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Reasons for Sentence

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1.Each defendant today has pleaded guilty to a single count of trafficking in a dangerous drug.

2.The 1st defendant, Mr Tang, pleaded guilty to trafficking in a total of 2.75 grammes of ketamine in the 1st charge.  The 2nd defendant, Mr Tang Chi-lung, pleaded guilty to trafficking in a quantity of cocaine, and that is 4.24 grammes of that drug. 

3.The facts that both defendants have admitted to show the following.  The events occurred on 18 May 2020 and at that time the 1st defendant was seen standing next to the front passenger seat of a private car in a road in Tin Shui Wai in the New Territories.  A male was sitting on the driver’s seat while the 2nd defendant was lying down on the rear passenger seat.  At some point, the 1st defendant boarded the vehicle and sat at the front passenger seat. 

4.Then a stop and search operation occurred in respect of both defendants.  There was a search of the 1st defendant.  A number of plastic bags were found in his possession in his underwear, which amounted to the 2.75 grammes of ketamine contained in the 1st charge.  The 1st defendant also had some cash and mobile phones on him. 

5.The 2nd defendant was searched and a plastic bag was also found in his underwear which contained a number of other plastic bags, a total of 30 of them, and those contained the quantity of cocaine that previously is set out in the 2nd charge.  The 2nd defendant also had cash and a mobile phone on his person. 

6.The defendants were arrested and under caution, the 1st defendant said that the ketamine, ‘K Tsai’, was for his self-consumption and the 2nd defendant admitted, he said that drugs did not belong to him.  He had given drugs by the 1st defendant, telling him to help him carry them.  Nothing particular was found in the house searches. 

7.Both defendants admitted they possessed the drugs found upon them for the purpose of unlawful trafficking. 

8.Turning to the backgrounds of the defendants. Both the defendants are relatively young men.  The 1st defendant at the time of the taking of the antecedents statement was 23 years old.  I think he is now 24.  He has no criminal record in Hong Kong, a clear record.  Defendant, educated up to secondary education.  He is single, lives with his mother, father and brother. 

9.The 2nd defendant is even younger.  At the time of the antecedents statement he was aged only 20, he is now 21 years old.  He, like the 1st defendant, has no criminal record in Hong Kong.  Again, was educated up to secondary level in Hong Kong.  He is single and was living with his father, mother and brother. 

10.In respect of both defendants, probation officer’s background reports have been obtained together with the reports from the Correctional Services Department concerning the quantity of consumptions or testing for drugs on their arrest. 

11.The mitigation of the defendant put forward by the defendant’s somewhat as follows.  For the 1st defendant, it is noted that he, at this point, up to the time of his arrest and conviction, had a clear record.  He worked as a part-time security guard earning around $11,000 a month, but lost the job during the pandemic. 

12.References made in his case of the appropriate sentencing guideline in Secretary for Justice v Hii Siew Cheng, CAAR 7/2006.  It is noted there that trafficking in this quantity of drug, which is between 1 to 10 grammes of the drug, ketamine leads to a sentence of between 2 to 4 years’ imprisonment.  It is said the defendant, due to his clear record, his plea of guilty, his admission of the facts and his youth, thus the starting point for sentence should tend towards the lowest or the lower end of the sentencing guideline. 

13.His family asks for leniency.  There are letters of mitigation written on his behalf.  Defendant now understands being in custody since his arrest.  He has pleaded guilty at the first available opportunity. 

14.As far as the 2nd defendant’s mitigation is concerned, reference is also made for the 2nd defendant’s clear record, his youth, being only 21 years old at this stage, his single status, the defendant, again, is said to have admitted his guilt and agreed to the facts of the case, saving both court’s time and resources.  The defendant has shown remorse for the offences he committed.  He sees his future lying in Chinese cooking and being a chef in the future.  

15.In mitigation, it is put forward the defendant had spent $2,000 on five packs of cocaine for his own consumption, which should have been 0.78 gramme of narcotic.  The other 25 packets were taken for the purposes of trafficking at a reward of $1,000.  The court is again referred to the guidelines set down in these cases.  The appropriate guideline is found in R v Lau Tak Ming [1990] 2 HKLR 370 which is guideline for heroin.  The appropriate guideline lies between the figure for 2 to 5 years which is up to 10 grammes of narcotic. 

16.In addition to setting out the guideline helpfully for the court, the mitigation also has -- the court take into account the fact that some 18 per cent or 0.94 by total or 0.78 gramme of the narcotic content was for the defendant’s self-consumption.  This, of course, can be a mitigating factor.  Although the amount of drugs is not a significant part of the total drugs, it is a part of the total drugs and can be taken into account by way of sentencing discount.  The authority for that is the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  It is asked that in the court’s discretion there be some discount for the fact that the 2nd defendant would have possessed a portion of the drugs for his own self-consumption. 

17.Now, turning to the general approach of the sentence, the approach of the sentence has already been correctly set out in the mitigation of the two defendants.  I really have nothing more to add other than other than to formally say in respect of the 1st defendant’s case, he has admitted to the trafficking in a narcotic quantity of 2.75 grammes of ketamine.  The relevant guideline places that within the category of 1 to 10 grammes and the relevant tariff were between 2 to 4 years’ imprisonment.   The strict arithmetic calculation in respect of the 1st defendant for that quantity of drug would lead to a sentencing starting point in the region of 30 months’ imprisonment. 

18.I was asked to take into account factors in relation to the defendant’s such as his youth, his clear record, his remorse, to perhaps take a more lenient approach.  Actually, guidelines are adopted by the courts to ensure uniformity in sentencing but they are, as is said, not a straitjacket on the court.  In an appropriate case, the court can depart from that particular guidelines. 

19.Having regard to the 1st defendant’s mitigation, I would take an initial starting point for sentence, 30 months’ imprisonment which represents an arithmetic calculation of the starting point.  However, I would moderate to a starting point of 27 months’ imprisonment having regard to the defendant’s other mitigating factors. 

20.The defendant, of course, from that figure is entitled a full one-third discount, and the 1st defendant on the 1st charge would then be entitled, by my calculations, to a sentence of 18 months’ imprisonment. 

21.I turn now to the 2nd defendant.  Again, the appropriate starting point for sentence has been ventilated in the mitigation put forward by the parties.  The quantity of drugs the court is concerned with is one of 4.24 narcotic quantity of cocaine.  Relevant guideline can be found, as I have said earlier, can be found in Lau Tak Ming.  For trafficking cocaine up to 10 grammes, the tariff is between 2 to 5 years’ imprisonment and it was noted in the mitigation, and I agree with this, that again an arithmetic calculation of the starting point will lead to a starting point in the region of 39 months’ imprisonment or 3 years 3 months’ imprisonment. 

22.There is evidence as a test taken on this defendant of consumption of the drug, there is no reason for the court not to take into account the fact that the defendant, as he said in his mitigation, would have used a quantity of the drug for his own personal consumption.  The court can, in its own discretion, reduce the starting point from 39 months’ imprisonment to represent that factor.  I will do so.  I reduce the starting point in respect of the 2nd defendant’s case to one of 36 months’ imprisonment. 

23.The defendant is again entitled to a one-third discount from that figure, leading to the final figure on the 2nd charge, in the case of the 2nd defendant, of 24 months’ imprisonment.