HKSAR v. Tong Fai Keung

DCCC 353/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2011

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Reasons for Sentence

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1.The defendant has today pleaded guilty to two offences, the first being trafficking in a dangerous drug on 16 February 2011. The quantity of drug alleged in the charge is 14.71 grammes of cocaine.

2.The second charge relates to a failure to surrender to custody without reasonable cause, the defendant in this case being admitted to bail, failed to surrender to the court.

3.The defendant has agreed the facts of the case and I have convicted him of both charges.

4.The facts are quite simply summarised.  The first charge involved an anti-dangerous drug operation conducted on 16 February 2011 at a residence where the defendant was living. 

5.On entry to the premises, the defendant led police officers to the master bedroom and admitted there were dangerous drugs in that location.  Drugs were found in a black jacket inside the wardrobe in the master bedroom and a plastic bag and a metal box containing dangerous drugs were found in the inner pocket of the black jacket.

6.The defendant was arrested and cautioned immediately. He admitted that the plastic bag contained drugs, the drug cocaine.  He said he was not a consumer of the drug himself, but did not have enough money and sold cocaine to earn money to cover living expenses.

7.A further search of a computer desk in the master bedroom found drug-trafficking paraphernalia:  two electronic scales, two pairs of scissors, half a playing card, transparent resealable bags and also two notebooks and notes.

8.The defendant was subsequently video-recorded in an interview.  He said that the drugs found in the jacket had been purchased from an unknown person about a week before and he placed them in the inner pocket of the black jacket.  The drug trafficking paraphernalia (which is described as item 2) belonged to the defendant and he used these items to pack cocaine and he had recorded the transactions for buying and selling cocaine in the notebooks that had been found.

9.A total of 16.53 grammes of a solid containing 14.71 grammes of cocaine were located as a result of the raid, with a street value of $17,118.

10.Relating to the second charge, on 17 February, the defendant was granted bail by Kowloon City Magistrates Court No. 1 and extended further to 13 April 2011.

11.On 13 April the defendant was given bail to the District Court for 3 May 2011.  That was for plea, but he did not attend his trial in this case on 3 May 2011.

12.Subsequently, he was re-arrested on 27 February this year.  He said that he was scared about going to court and being imprisoned.  Nevertheless, he admits the offence under Section 2 and the case is proved against him.

13.I have been given the defendant’s antecedents. He has a criminal record relating to two non-similar offences: driving motor vehicle or vessel with marked fuel oil in the tank in 1997 and 2005.  He was fined on both occasions $2,000 and $3,000, minor unrelated offences, amongst the previous offending record of the defendant.

14.As far as his antecedent is concerned, he is a 50-year-old man, educated up to secondary school.  At the time of his arrest in 2011, he was a nightclub manager with a salary of about $8,000.  He has never been convicted of any offence involving imprisonment before.  He is a divorced man and lives with his girlfriend.

15.As far as mitigation is concerned, I am told the defendant had, at the time of this offence, been involved in heavy gambling and had incurred large debts.  He was working in a nightclub and advised by people there to consider trafficking in dangerous drugs as a way of earning money and he obviously followed that rather poor advice.

16.As far as the offence is concerned, he has fully cooperated at the time of his arrest and caution, although, of course, he did abscond when the time came to come to this court.

17.The unusual feature of the case is the defendant’s age and the fact that he has no serious offending before and no offending in relation to drugs.  It is somewhat unusual to find a person starting to offend in drugs at this age.  That clearly supports what he said in mitigation.

18.In mitigation, reference is made to the fact that he is remorseful, which has been shown by his plea, and I say this is, based on his criminal record, an offence for him that was out of character.

19.Now, as far as the sentencing guidelines are concerned, these are clear guidelines in respect of the drug cocaine.  This falls into the second band of 10 to 50 grammes, a sentence of between 5 to 8 years’ imprisonment.

20.As far as the second charge is concerned, the maximum sentence that can be imposed is one of 12 months’ imprisonment by this court.

21.As far as the starting points for sentence are concerned, on the first charge, due to the mitigating factors, I will take the lowest point on the tariff for the sentence, which is 5 years’ imprisonment.

22.The defendant is entitled to a one-third discount.  That is more easily expressed as months (because that is 60 months), which would be 40 months, if expressed as months.

23.As far as the second charge is concerned, I will take a starting point of 6 months’ imprisonment.

24.I will reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

25.Now, taking a look at the overall totality of sentence, obviously there must be some elements served consecutively because the offences are of a different character committed on different dates.

26.Nevertheless, having regard to the mitigation of the defendant, I will impose the sentences as follows. 

27.I am going to order that 2 months of the second offence be served consecutively to the first offence and two months of that concurrently. 

28.So, that leads to a sentence of 42 months’ imprisonment (or 3 years and 6 months’ imprisonment) and that is the sentence that I will impose in this case.