HKSAR v. Tsang Chun Man

DCCC 530/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 530 OF 2012

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REASONS FOR SENTENCE

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The Charge

1.The defendant was convicted after trial on a single charge of trafficking in dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The subject-matter of the dangerous drugs relates to 3 different types of drugs, namely 5.43 grammes of a solid containing 4.36 grammes of cocaine, 149.69 grammes of a powder containing 108.97 grammes of ketamine and 70 tablets containing 0.05 grammes of nimetazpam.

The Facts

2.This is a simple stop and search case.  The facts can be briefly stated. The Police arrested the defendant when he was travelling as a front seat passenger in a private vehicle together with a driver and another passenger in the back seat.  Upon search of the defendant, the dangerous drugs as stated above were found inside his front trousers pocket of as well as inside a paper bag carried by the defendant in the private vehicle.

The Background of the Defendant

3.The defendant is 18 years old.  According to his criminal record, he started to make trouble with the law in 2008 at the age of 14.  For 4 charges of Theft offences (shoplifting), he was put on Probation Order for 12 months.  The Probation Order was later extended to 21 months for his breach of the Probation Order.  However, according to the Background Report, as he repeatedly violated the curfew requirement and breached the Probation Order, on 9.4.2009, his Probation Order was finally discharged and he was sentenced to Rehabilitation Centre (RC).

4.The defendant had only completed Form Three level in Hong Kong.  After leaving school, he had worked as a part-time delivery worker.  After his discharge from RC in 2010, he made effort to maintain gainful employment by working as a casual worker in a re-cycle company earning about $450 per day.

5.The defendant was the only child in the family. His father however deserted the family when the defendant was only 2 years old due to the father’s gambling habit.  The mother left Hong Kong to work for a living whilst the toddler was entrusted to the care of a private foster home.  The mother-son relationship was thus fair. At the age of 14 in 2007, the defendant was restored home owing to his thievish behavior and the mother returned to Hong Kong to live with the defendant.

6.It is not surprising that the defendant became rebellious and after he was promoted to Form 2, he mingled with vice associates with triad backgrounds in places like cyber café and video game centre.  The defendant admitted to the Probation Officer to be a follower of triad society but denied having any drug abusing experience and did not involve in any vice activities.

7.Regarding the present offence, the defendant admitted to the Probation Officer his misdeed for not thinking of the serious consequences when making easy money. Under the influence of vice peer, he participated in drug trafficking. He further confessed to have made 4 deliveries as such and each time, he would receive $500 to $600 as reward.

8.During the present remand, the Probation Officer told the court that the defendant had gained insight on the seriousness of his offence and expressed regret for his misdeed.  He promised to cut off his link with vice associates, lead a law-abiding living and would resume open employment upon discharge.  The defendant said he had learned a hard lesson and he asked the court for a lenient sentence.

9.The mother was of course so very upset and regret the effects of a broken family on her son and she also sought leniency from the court and promised to do her best to assist her son to reform in the future.

Sentencing Consideration

10.The Court of Appeal had in a Chinese Judgment HKSAR v KO Ka Hing [2009] 4 HKLRD 856 recapitulated the different sentencing approaches in dealing with different types of drugs found in a single occasion. There is an official English translation of the Judgment and I set out the relevant paragraph herein below:-

“Sentencing approach

3. …

(a) The first approach is the "individual approach" where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount.

(b) The second approach is the "combined approach" where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of (p 859) the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.

(c) Where the "combined approach" is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.

(d) As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the "combined approach"; where, on the other hand, the two drugs are disparate in quantity and potency, the "individual approach" is to be preferred.

(e) The appropriate approach to be adopted is a matter of discretion for the sentencing court, to be exercised in light of the circumstances of the particular case. No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point, see: HKSAR v Chan Ho Wai (unrep, CACC 129/2008, [2008] HKEC 1505); HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542; HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42.

4. To the above principles, we would add the following observations:

(a) In respect of a mixture of different types of dangerous drugs, ie the so-called "cocktail drugs" or "designer drugs", which usually involves the use of one of the components to enhance the potency of another, it is more appropriate for the court to adopt the "combined approach" in determining the starting point.

(b) In fact, whichever approach is adopted, the court will inevitably have to fix a sentence for each type of drug and then make adjustments as appropriate, in order to avoid the absurdity referred to in HKSAR v Yip Wai Yin: where the "individual approach" is adopted, the addition of the sentences for each individual drug may lead to a far higher overall sentence than if the whole quantity of the mixture merely contained the more or most serious of the various drugs.”

11.After considering the above, I shall use the “combined approach”. Obviously, the most serious type of drugs in our case is cocaine in terms of its potency.  However, the quantity of cocaine in our case is relatively small, only 4.36 grammes when compared with the ketamine seized which is a total of 108.97 grammes.  In light of the comment expressed by the Court of Appeal in para 3(c) as cited above, the disparity of the quantity between the cocaine and ketamine found on the defendant means that the ketamine, although less potent than the cocaine, was present in a much larger quantity and as such, its quantity will form the basis for the starting point.

12.In the last occasion, Mr Chandler for the defendant had submitted that the court should instead used the cocaine found in this case as the starting point and adjusted the sentence upward taking into consideration of the quantity of the other drugs since cocaine is a hard drug and thus is more serious.

13.In my judgment, his suggested approach is totally unrealistic for the following reasons:

(i) according to the sentencing tariff for cocaine which is the same tariff for heroin as laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370 (see AG v Rojas [1994] 1 HKC 342), for quantity up to 10 grammes, the sentence should be 2 to 5 year’s imprisonment. Therefore, 4.36 grammes of cocaine will attract a starting point of 2 years only;

(ii) according to the new sentencing tariff for ketamine as adjusted upwards following the successful application by the Secretary for Justice in the case of Hii Siew-cheng [2008] 3 HKC 323, the sentence should be between 6 to 9 years for quantity between 50 to 300 grammes. Therefore, 108.97 grammes of ketamine will attract a starting point of about 75 months.

14.In my view, it is plainly absurd to adopt the much lower starting point of cocaine and to adjust it upwards to take into account the presence of the large quantity of ketamine. Plainly, in this case, the ketamine found represents the most serious type of the drugs among the three different types of the drugs and relying on common sense, it should be used as the starting point and then the sentence can then be adjusted upwards to reflect the presence of the other drugs.

15.In the end, I judge that the starting point of 75 months is to be adjusted upward by 3 months only on account of the presence of the cocaine which is only about 4 grammes and also taking into account the overall totality of sentence which is now added up to 78 months or 6 ½ years.

16.The presence of the 0.05 grammes of nimetazepam tablets, on the other hand, pales into insignificance as far as the overall sentence is concerned both in terms of its quantity and its potency. In HKSAR v Amnuaychoke Nopporn CACC 441/2001, the Court of Appeal had said:-

“Therefore, when the two quantities are looked at, the smaller quantity of dangerous drugs and sometimes also, as in the case we are presently considering, the less significant kind of drug may or may not add to the length of the starting point at which the sentencer is seeking to arrive by an attempt to combine the two types and quantities of drugs together to achieve a just overall sentence.”

17.The question I have to ask myself, in the light of the judgment to which I have referred, is whether the amount of nimetazepam tablets being trafficked should have materially altered the sentence imposed on the defendant for trafficking coaine and ketemine.  The narcotic content of the nimetazepam is just 0.05 grammes.  If this had been a further quantity of either cocaine or ketamine, this would not have made more than a marginal difference, if indeed any difference at all, to the starting point I have taken for the overall quantity of the two drugs combined.  For this reason, therefore, I do not think that any further term of imprisonment, by way of enhancement of the starting point taken for the cocaine and ketamine, should have been incurred. 

18.Trafficking is a most serious offence and anyone who is convicted of the offence should only expect to be dealt with severely by the court.  The defendant is only 18 years of age with light criminal record but he is not extremely young.  As said by the Court of Appeal in R v Lau Tak-ming and Others [1990] 2 HKLRD 370:-

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

19.It is lamentable that the young defendant would serve a long time in prison but the message has to be sent and the lesson has to be learned by those especially young people who are so easily succumbed to the influence of their dubious peers and temptation to earn easy money just like the present defendant.

20.The court can well understand the feelings of the mother of the defendant as her husband was a gambler and deserted the family and she has to leave Hong Kong and therefore the defendant in his tender years to earn for a living but as a result she could render no or indeed very little supervision on the up-bringing of her son but the Court of Appeal has made it clear that family circumstances virtually play no part in mitigation and much as I have sympathy for her, I could only urge the mother not to blame herself too much and look forward to the reunion with the defendant after he has served his time.

Order

21.There being no other mitigation or exceptional circumstances, the defendant is therefore sentenced to 6½ years’ imprisonment.