HKSAR v. Tsang Man Kit

DCCC 108/2024

[2025] HKDC 542

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 108 OF 2024

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

Charge 1

2.About 3:00 a.m. on 3 August 2023, PC 28306 saw the defendant walking out of Ko Kie Building, Nos.9-11 Jordan Road, Yau Ma Tei ("the Building")  and intercepted him.  He took the defendant back to the Ground Floor lift lobby of the Building for enquiry.

3.Upon search, 12 transparent resealable plastic bags which contained a total of 2.10 grammes of a solid containing 1.89 grammes of cocaine (collectively E1)  were found in the defendant's trouser pocket.  Under caution, the defendant admitted that the cocaine was to be sold to make money.

Charge 2

4.About 3:06 a.m. on the same day, the defendant was brought back to his residence on the 15^th Floor of the Building ("the Flat").  He was the sole tenant of the Flat.  Upon search, the following items were found on a table in the bedroom of the Flat :-

(i)  in a plastic M&M's bottle (E2), 6 small transparent resealable plastic bags which contained a total of 2.41 grammes of a solid containing 2.18 grammes of cocaine (collectively E3)  and 1 larger transparent resealable plastic bag which contained 23 grammes of a solid containing 9.26 grammes of cocaine (E4);

(ii)  1 larger transparent resealable plastic bag containing multiple smaller transparent resealable plastic bags;

(iii)  1 plastic spoon;

(iv)  a pair of tweezers; and

(v)  1 electronic scale.

5.The defendant was arrested again.  Under caution, he admitted that the cocaine [found in the Flat] was to be sold to his customers.

6.In his video recorded interviews, regarding Charge 1, the defendant claimed that a person named "Ah Lung" gave him the drugs and asked him to divide them and placed them in a planter in Jordan for someone to pick up.  The defendant admitted that he was on his way to do so.  He knew that the drugs found were cocaine. Regarding Charge 2, the defendant claimed that he was residing at the Flat alone.  He rented the Flat and possessed the only key to the Flat.  The [M&M's] bottle belonged to him and he knew that it contained cocaine.  Ah Lung gave him the cocaine to disseminate.  The defendant packed the cocaine in the bedroom alone.

Mitigation & Sentence

7.The defendant is 35 and single.  He has 2 conviction records involving 2 offences, one of which was "drug trafficking" (for which he was sentenced to 15 years' imprisonment in December 2012).  Defence counsel Mr. Boyton informed me that the defendant has a cohabitee; they were residing at the Flat and the defendant's parents paid for its rent.  From February 2022 to February 2023, the defendant worked at his mother's company earning over $23,000 per month.  His mother has also purchased brand named luxurious products for him as gifts.  In short, Mr. Boyton tried to show that the defendant was financially sound.

8.In mitigation, Mr. Boyton submitted that the defendant started taking cocaine in 2010.  I note that the defendant was serving a 15-year prison term at the latest from December 2012 onwards, during which I can safely assume that he had no access to any dangerous drug.  His antecedent statement does not show when he was released from prison, but Mr. Boyton informed me that the defendant picked up cocaine again in August 2022 (i.e. about a year prior to the present offences).  At the time of his arrest, he was consuming slightly less than 1 gramme per day.  Mr. Boyton has thus raised self-consumption as mitigation as well.

9.Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment; for 10 to 50 grammes, 5 to 8 years.

11.Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[1].  Mr. Boyton explained that the defendant would usually purchase cocaine once a month in bulk at 24 grammes (which so happened to be E4's weight).  In July 2023, he purchased a little too much, so he decided to sell off the remaining stock (namely E1 in Charge 1 and E3 in Charge 2)  to his friends.  Mr. Boyton pointed out that E1 and E3 have the same purity (about 90%); whereas E4 in Charge 2 is only 40%.  Mr. Boyton submitted that such circumstances lend support to the defendant's assertion that he purchased E4 in August 2023 for self-consumption.

12.Mr. Sin for the prosecution objected to the defendant's claim entirely.  He argued that the packaging of E1 and E3 is strongly indicative of trafficking.  No consumption paraphernalia were found in the Flat. Most importantly, the defendant did not mention self-consumption at all in any of his video recorded interviews.

13.The defendant's urine test report (sample taken on 5 August 2023; 2 days after his arrest)  showed cocaine positive.  I accept that he could be a cocaine user and that a portion of the cocaine found in the present case could be for his own consumption.  I am also aware that a drug-user may well be a trafficker.  Based on purity, E1 and E3 are clearly distinguishable from E4.  Based on packaging, E1 and E3 are no doubt indicative of trafficking, which the defendant did not deny.  The remaining issue is whether E4 was intended for self-consumption as alleged by the defendant.

14.Unlike agricultural produce or dairy products, "freshness" is probably not an issue for cocaine.  If the defendant was a mere user and had bought a little too much, he could always keep the "leftover" for the following month.  There was no need to sell off any remaining stock, unless he also engaged in trafficking by way of trade or business, something which he has admitted clearly.  In fact, he has admitted that Ah Lung gave him the cocaine (i.e. E3 and E4)  to disseminate.  Contrary to his own admissions, the defendant now claims that E4 (which existed in a significantly larger pack but was of a significantly lower purity)  was intended for self-consumption.

15.I note that by adultering and repackaging E4, its purity is more likely to go down than to go up.  Chances are, comparing to the purity of E1 and E3, E4 may not sell very well even as it is, needless to say if dropped below 40%.  Having balanced all factors, my answer to the question I posed earlier is "Possible".  The benefit of this answer must go to the defendant.

Charge 1

16.The defendant trafficked in 1.89 grammes of cocaine. Applying a strict arithmetical approach, the appropriate starting point is 2 years and 7 months.  For ease of calculation, I adopt 2.5 years as the starting point.  With the timely guilty plea, I sentence the defendant to 20 months' imprisonment for this charge.

Charge 2

17.The defendant trafficked in 11.44 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 1 month.  For ease of calculation, I adopt 5 years as the starting point.  I am prepared to grant a discount of 9 months[2] for self-consumption, reducing the starting point to 51 months[3]. With the timely guilty plea, I sentence the defendant to 34 months' imprisonment for this charge.

Overall sentence

18.Charges 1 and 2 took place almost simultaneously.  In other words, the defendant trafficked in a total of 13.33 grammes of cocaine in both charges at the same time.  Applying a strict arithmetical approach, the appropriate starting point for this quantity is 5 years and 3 months, which I would adopt. With the 9-month discount for self-consumption, the starting point is reduced to 54 months.  With the timely guilty plea, the overall sentence becomes 36 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I order 2 months in Charge 1 to run consecutive to the sentence for Charge 2.