HKSAR v. Tang Tung Fai

DCCC 1165/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1165 OF 2010

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Reasons for Sentence

1.The Defendant has been convicted on his own pleas of two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 3.01 grammes of a mixture containing 1.26 grammes of heroin hydrochloride in respect of count 1 and 12.13 grammes of a mixture containing 4.94 grammes of heroin hydrochloride in respect of count 2.

2.The particulars of the offence are that at 9 August 2010, police officers conducted an anti-dangerous drugs operation in the area of Heng Wing House, Fu Heng Estate, Tai Po. A search warrant had been obtained in respect of premises at Room 2013, 20^th floor, Heng Wing House. At about 1650 hours, the Defendant was seen leaving the said premises. He was intercepted by two police officers, searched and 20 packets of dangerous drugs the subject matter of count 1 were found in the left front pocket of his shorts. He was arrested and cautioned and claimed the dangerous drugs were for his self-consumption. At about 1720 hours, he was brought back to the premises. Entry was obtained with a key found from the Defendant. 80 packets of dangerous drugs the subject matter of count 2 were found under the pillow in the Defendant’s bedroom. Again, under caution, he claimed the dangerous drugs were for self-consumption. The estimated street value of the dangerous drugs the subject matter of count 1 is HK$2,456, while that for the dangerous drugs the subject matter of count 2 is HK$9,898. The total quantity of narcotics is 6.2 grammes of heroin hydrochloride in respect of both charges.

3.The Defendant is now aged 19 years.  He has 2 previous court appearances, the last being in 2008 for burglary, when he was sentenced to the Training Centre.  He is still under CSD supervision in respect of this conviction.

4.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

5.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is not insubstantial.  The Defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.  He has been sentenced on two occasions to the Training Centre, the last being in 2008 for an offence of burglary, and is still subject to the supervision of the CSD.  Another Training Centre order in my view would be inappropriate.

6.In mitigation, I am told that the Defendant is aged 19.  His father had deserted the family and he grew up in a single parent family.  His mother works as a security guard, while the Defendant worked as a transportation worker earning $6,000 each month.  He lived with his mother and 2 elder siblings.  I note from the Antecedent Statement that the Defendant has said he is a drug addict, and he did claim when arrested that the dangerous drugs were for self-consumption.

7.As counsel has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

8.The sentence follows the quantity of drugs.  That would put the quantity in the Defendant’s possession at the material time at the middle range of that spectrum, being a total of 6.2 grammes of heroin hydrochloride.

9.I would accept that a small part of the drugs in question could have been for the Defendant’s own consumption.

10.Pursuant to HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69, I have taken into account that the Defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs.

11.Looking at those features of the case, I have decided that the appropriate starting point for count 1 is one of 2½ years’ imprisonment, and that for count 2 is 3½ years.

12.The Defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.

13.That is the only mitigation of weight before me.

14.He is therefore sentenced to 20 months’ imprisonment on count 1 and 28 months’ imprisonment on count 2.  I shall order that these sentences run concurrently.