HKSAR v. Tsoi Tsan Kit

HCCC 230/2020

[2023] HKCFI 1111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 230 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.On 5 October 2020, the defendant Tsoi Tsan-kit, pleaded guilty at the first opportunity to 2 counts of trafficking in dangerous drugs contrary to S4(1)  (a)  & (3)  of the Dangerous Drugs Ordinance, Cap 134. He has been committed to the Court of First Instance for sentence and has confirmed his plea before this Court.

Background Facts

2.In October of 2018, Tsoi was working on a casual basis for his co-defendant, Law Chi-chung as a labourer in Law’s air conditioning business.  A month earlier, on 6 September 2018, Law had rented a storage unit in order to store equipment for that business.  At 1555 hours on 12 October, during an anti-narcotics operation, the police observed Tsoi sitting in the passenger seat of a vehicle driven by Law and parked outside of the Hang Fung Building in which the storage unit was located.

3.Tsoi was observed to get out of the vehicle and, with the help of Law, to unload two white boxes onto a trolley.  Law remained with his vehicle whilst Tsoi took the trolley and the boxes up to unit HF6047 on the 6/F of the building.  At 1630 hours Tsoi was seen to come down from the 6/F and exit the building carrying two pink plastic bags.  He got into the private vehicle owned by Law and they drove away.

4.On 14 October 2018, Tsoi was observed to enter the Hang Fung Building once more.  He was intercepted when leaving the storage facility within the building, at which time he was in possession of two plastic bags each containing a block of cocaine.  These form the basis of the charge at Count One of the indictment in respect of a total narcotic content of 1,558 g of cocaine.  Upon search a key card and a key was recovered from within his trousers, secreted in his underpants.  The key card allowed access to the storage facility and the key allowed access to a padlock which was fixed upon the sliding bolt of unit HF6047.  That bolt also had another lock, which was a combination lock.  Tsoi provided the numerical code to open that lock as well.

5.Upon entry into the unit, the police recovered the two white boxes P15 & 16, which had upon them a distinctive flag which had been seen by the officers on the previous day.  These two boxes contained several “bricks” of cocaine taped with brown tape.  There was also a further box which contained fewer blocks similarly taped.  In the corner of the unit, within a grey plastic storage box, the police also recovered a re-sealable plastic bag which contained loose cocaine and also an electronic scale amongst other paraphernalia, which suggested that the cocaine was being supplied in both bulk and smaller quantities.

6.The brown cardboard box had just 3 bricks of cocaine within it weighing 3.01 kgs with a narcotic content of 2.31 kgs of cocaine.  P15, a white box had 9 bricks inside weighing 8.98 kgs of which the narcotic element was 6.79 kgs.  P16, another white box contained 16 bricks of cocaine weighing 16.06 kgs with a narcotic content of 11.79 kgs. The re-sealable plastic bag recovered from the grey plastic box weighed 228 g with a narcotic content of 163 g. These all form the subject matter of Count 2 with a total narcotic content of 21,053 g.

7.Upon arrest and caution, Tsoi admitted that the bricks which were found in his possession had come from the storage unit and said that someone called “Ah Yu” had asked him to take 2 blocks of coke from the storage unit and deliver them to him.  In his subsequent Video Recorded Interview Tsoi, as is his right, declined to answer any questions.

8.The retail value of the drugs recovered under Count One in October 2018 was $2,252,210 and under Count Two was $31,699,638. A total of $33,951,848.

Antecedents

9.The defendant Tsoi is now 32 years of age.  He was born in China but is the holder of a HKID.  He was educated up to Form Secondary One.  He lived with his parents and other family members at the time of this offending.  He was first before the courts in October 2009 for 2 counts of trafficking in dangerous drugs for which he received a sentence of 56 months’ imprisonment from the District Court.  A month later a further 4 months was added to that sentence by the Magistrate’s Court for a charge of possession.  In 2015, he was before the High Court for a further offence of trafficking in dangerous drugs when he received a sentence of imprisonment of 6 years and 4 months.  He was released from that sentence in December 2017.  He met Law in January 2018, the rental unit was obtained in September 2018 and Tsoi committed this offence in October 2018.  It would appear from his offending pattern that Tsoi was in the business of trafficking in dangerous drugs. 

Mitigation

10.Tsoi has been remanded since 13 October 2018. At the time of his arrest he had a fiancée who was pregnant and presumably subsequently gave birth, although Mr Leung is silent in his written submissions on that point.  He tells me the couple broke up as a result of his incarceration.  Mr Leung suggests that Tsoi committed this crime because he had borrowed money for his forthcoming marriage and urgently needed to pay his debt.  That is not what his offending history suggests.  I have also read the letter that Tsoi Tsan-kit has provided to the Court.  I am not impressed by it.  He suggests that this was a one off exercise and yet he accessed the unit on many occasions when Law was out of the country and it is clear that he had placed the brown box in the unit on a separate occasion to the incident on 12 October.  Given the size of the box and the very few remaining blocks, there must have been other bricks.  I do not highlight this to suggest I would take that activity into consideration in any way in sentencing but to mark my reasons for rejecting some parts of the defendant’s letter.  I take the view that he entered into this enterprise with his eyes wide open and for gain.  Nevertheless, the defendant did plead guilty at the first opportunity and he will be given credit for that.

Sentence

11.The sentencing guidelines for trafficking in cocaine can be found in HKSAR v Lau Tak-ming & Others [1990] 2 HKLR 370 and in HKSAR v Abdallah [2009] 2 HKLRD 437.  For trafficking between 4,000 g and 15,000 g, the guideline sentence is one of between 26 to 30 years.  This was a total of 22,611 g.  Sentencing is therefore at the court’s discretion.

12.Mr Leung has provided the court with a number of authorities in which large quantities of drugs are involved.  These range in date from 1994 to 2019, but in recent years the amount of drugs recovered in cases has grown exponentially.  It is clear that even the more humble trafficker is dealing in several kilos of drugs and not several 100 grammes. This was a commercial enterprise.  The defendant has chosen not to assist the authorities with how that enterprise worked as is his right and therefore the whole of that enterprise rests upon his shoulders for the purposes of sentencing, albeit I accept that he was more of a middle man than someone who was to gain substantially from this offending.  Nevertheless, the more drugs an offender traffics, the greater the harm to society, especially harm to the young and vulnerable.  At present the Court’s do not have any assistance from the Court of Appeal as to how these greater quantities should be dealt with in current circumstances.  But it is not simply a question of comparing other sentences.  It is a far more complex exercise than that.

13.I take into account the nature of this operation, which Tsoi was heavily involved in as a middle man.  He transported and stored cocaine and he supplied it in bulk to another criminal but he also appears to have broken up the cocaine into smaller amounts as can be seen from P11; perhaps as a side-line business.  If this is the case, he is supplying directly to users.  He is not simply a courier.  In all the circumstances I consider the correct starting point to be one of 31 years.  That is a significant sentence but the defendant knew what he was risking when he entered into this offending.  When considering any aggravating features, I am required to take into consideration the principle of totality.  That does not mean that other facts should never be taken into consideration which aggravate that sentence simply because an offender receives a just but lengthy sentence.  In this case the defendant has been in and out of prison for trafficking in dangerous drugs in short order and I take into consideration the fact that he was released from prison for the same offence and continued to offend almost immediately.  I intend to enhance his sentence by 6 months making a total sentence of 31 years 6 months.  Which, after a reduction for his plea of guilty, makes a sentence of 21 years.  Tsoi faces two counts arising from one series of offending.  He will go to prison for a period of 15 years 8 months on Count One, which involves 1,558 g of Cocaine.  On Count Two, involving 21,053 g, you will go to prison for 21 years to be served wholly concurrently with Count One.

Mr David Boyton, counsel-on-fiat, for HKSAR

Mr Ronny Leung, instructed by Yip, Tse & Tang, assigned by Director of Legal Aid, for the Defendant