HKSAR v. Tam Tsz Chung

DCCC 425/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.425 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, one charge of possession of dangerous drugs, one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug and one charge of possession of a prohibited weapon.

Summary of Facts

2.At around 8pm on 20^th January 2013, the mother of the defendant, madam Ko visited room 712 of Tim Ming House where the defendant resided with his twin brother, PW2.

3.Upon arrival, madam Ko found that she was unable to open the front door with her set of keys and so she knocked on the door. A girl opened the door and madam Ko saw the defendant and 2 other male sitting on the sofa. Madam Ko also saw what she knew were apparatus for taking of dangerous drugs inside the flat and so she immediately called the Police while standing at the door to stop the 4 people in the flat from leaving.

Charge 1: Trafficking in dangerous drugs

4.Police arrived shortly and upon searching a drawer inside the wardrobe opposite the defendant’s bed, they found a red candy bag labeled ‘Skittles’. Inside the ‘Skittles’ bag was a transparent plastic bag and inside this bag were 30 transparent re-sealable plastic bags with suspected dangerous drugs inside. The drawer had a padlock on it but was unlocked at the time of the search. The key for the padlock was found to be in the custody of the defendant.

Charge 4: possession of a prohibited weapon

5.Police seized from the same drawer a gravity operated steel baton and its cover.

Charges 2 and 3: possession of dangerous drug and apparatus for inhaling

6.On a table inside the flat, Police found a cigarette box with a re-sealable plastic bag containing suspected dangerous drugs inside. There was also a ‘Coca-Cola’ bottle with 2 straws inside.

7.Government Chemist confirmed that the 30 transparent re-sealable plastic bags contained a total of 8.54g of a solid containing 5.75g of cocaine; that the one plastic bag found inside the cigarette box contained 0.1g of crystalline solid containing 0.1g of methamphetamine hydrochloride; that the ‘Coca-Cola’ bottle with 2 straws inside was an inhaling device containing traces of methamphetamine.

Previous conviction

8.The defendant has one spent conviction for theft dated 8^th September 2004. This previous conviction will not be regarded as an aggravating factor in my sentencing of the defendant.

Mitigation

9.The defendant is 27 years old. He is single and resides at Room 712 with his elder twin brother. His parents have been divorced for more than 10 years. Both of them are however in court to show their support.

10.I received letters in mitigation from the defendant, his parents, uncle and social worker.

11.I was told that the defendant had been a kitchen apprentice for 1 year but was doing casual paintjobs prior to his arrest and was earning about $15,000.

12.The defendant frankly admitted that he is a drug addict. In relation to the trafficking charge, after he received his wage on 7^th January, the defendant used $10,000 to buy 35 bags of cocaine from someone. He had already shared 5 of those with his friends and that was why Police only found 30 bags in the drawer. It is not part of the defendant’s mitigation that any of the remaining 30 bags were for the defendant’s own consumption. In fact, the defendant admitted in paragraph 11 of the summary of facts that at all material times he was in possession of the dangerous drugs in the 30 bags for the purpose of unlawful trafficking.

13.In relation to charge 4, the defendant explained that because someone once threw paint at his home he bought the baton for protection, but had never used it.

Sentencing tariff for the trafficking charge

14.The applicable guidelines for trafficking in cocaine, as confirmed in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370. Sentencing for trafficking in cocaine for quantities up to 10g is that of 2 to 5 years’ imprisonment. The quantity being trafficked in our present case is 5.75g and I find that a proportional starting point would be 42 months’ imprisonment given the fact that the defendant has a virtually clear record.

Sentence

Charge 1

15.Having heard from Ms. Cheung for the defendant, I find that there is however no reason that would allow me to deviate from the sentencing tariff. I will therefore adopt a starting point of 42 months’ imprisonment, discounting it by one third to that of 28 months’ imprisonment.

Charge 2

16.Since the defendant will be sentenced to imprisonment for more than 9 months for charge 1, there is no need for me to call for a Drug Addiction Treatment Centre report under s.54A of the Dangerous Drugs Ordinance prior to sentencing on the possession of dangerous drugs charge.

17.The dangerous drugs that the defendant possessed was just 0.1g of methamphetamine. I will adopt a starting point of 9 months’ imprisonment and discount it to 6 months upon the defendant’s guilty plea.

Charge 3

18.The maximum sentence for charge 3 is that of a fine of $10,000 and imprisonment for 3 years. For the same reason as with the possession of dangerous drugs charge, there is no need to call for a DATC report prior to sentencing on this charge.

19.The apparatus involved is just a bottle and 2 straws. I will adopt a starting point of 6 months’ imprisonment, reducing it to that of 4 months upon the defendant’s guilty plea.

Charge 4

20.In relation to charge 4, maximum penalty is a fine of $10,000 and 3 years’ imprisonment.

21.There was just one single baton and it was being kept inside a drawer inside the wardrobe in the home of the defendant. It would appear that the drawer would usually be locked up since even the defendant’s twin brother was not aware of the presence of drugs inside.

22.This offence is a strict liability offence and the reason why the weapons are prohibited is because they are capable of causing grave injury when used on another person. This being the defendant’s first and only such offence and the fact that he has no other records of violence, I find that a sentence of 6 months’ imprisonment is sufficient punishment. This is discounted to 4 months’ imprisonment upon the defendant’s guilty plea.

Totality

23.Standing back, it can be seen that charges 1, 2 and 3 are all related and I order that the 3 sentences be served wholly concurrently.

24.Charge 4 however is unrelated to the other charges. But then but for madam Ko’s determination to save his son, the baton would probably just have stayed inside the flat.

25.I will order that 2 months of charge 4 be served consecutively to the sentence in the other charges.

26.The total sentence is therefore 30 months’ imprisonment for all 4 charges.