HKSAR v. Tsang Chung Keung

DCCC 56/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 56 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 26^th November 2013 unlawfully trafficked in a 6.45g crystalline solid containing 6.33g of methamphetamine hydrochloride (commonly known as ICE) on the ground floor of block 23, Shek Kip Mei Estate in Sham Shui Po.

Facts

2.The defendant was intercepted by Police on anti-narcotics patrol at around 9:52pm on the charge date at the charge address. Upon search, a re-sealable plastic bag with some substances inside were found. Police suspected them being dangerous drugs and arrested and cautioned the defendant, who said that he helped one Ah Choi to bring the dangerous drugs there so he could make some money. The substances were later confirmed to be the dangerous drugs particularized in the charge.

3.The defendant had one mobile phone and $79 on him at the time of arrest. A house search was conducted at the defendant’s residence and no suspicious items were found.

4.In a subsequent video recorded interview, the defendant claimed that the substance was ICE. The defendant disclosed that at around 9pm that night, Ah Choi asked if he would like to make some money by carrying some dangerous drugs for him to a basketball court near Shek Kip Mei Estate and then to pass the packet to someone upon the telephone instructions of Ah Choi. The defendant knew that it was dangerous drugs that was to be carried and agreed to it. The defendant was to receive $100 for his trouble but he was never paid before he was arrested.

Previous convictions

5.The defendant has 15 previous convictions with none similar to the present charge. There is not even one related to dangerous drugs. His last conviction was some 4 years ago for dealing with property known or believed to represent proceeds of an indictable offence. Before that, he managed to stay out of trouble for 7 years from when he was last convicted of selling infringing copies of copyright works. I will not take his previous records of convictions as an aggravating factor.

Mitigation

6.The defendant is 37, educated up to F.3 level. The defendant was a worker in the recycling trade between 2009 and 2011 with a stable income of $15,000 per month. As a result of an industrial accident in March 2011 he suffered injury to his wrist and was granted sick leave for about 2 years. He did receive compensation of about $100,000. At the end of his sick leave, the defendant started to work as a wedding organizer on a casual basis. He is now living on his savings and disability allowance of about $4,400 per month.

7.The defendant has been a drug addict since 2011 when he was injured at work. He started to take dangerous drugs after the injury under the misguided belief that it would reduce his pain.

8.Counsel for the defendant submitted that half of the dangerous drugs were for the defendant’s own consumption. A urine test report was produced to show that urine sample taken on 28^th November 2013 from the defendant had tested positive for amphetamine. This is to support the defendant’s claim that he was a user of the drug.

9.It is the defendant’s claim that what he told the Police under caution in his video recorded interview was not the whole truth. The truth is that he was promised half of the drugs that he was to deliver that night for a discounted price of $900. He was to deliver the drugs to the basketball court, wait for the phone call, then split the drugs with someone as directed by Ah Choi. The defendant would also get $100 from that person for his trouble.

10.This is of course entirely different to what the defendant said under caution in his video recorded interview. He never mentioned about buying at a discounted price for assisting in the delivery. The defendant also did not dispute the final paragraph of the summary of facts which he had admitted to in open court, the paragraph that states that he had possessed the drugs for the purpose of unlawful trafficking.

Sentencing tariff

11.It is not disputed by the defence that the tariff sentence for trafficking up to 10g of methamphetamine hydrochloride is that of 3 to 7 years’ imprisonment[1].

Sentence

12.There is nothing in the defendant’s personal circumstances as put forward in mitigation that would persuade me to depart from the sentencing tariff.

13.As for self-consumption, I find that the drug test conducted by the CSD on the defendant’s urine sample just 2 days after the defendant’s arrest for the present offence strong evidence to suggest that the defendant was in fact a user of amphetamine. This is important because otherwise there is no previous convictions to suggest that the defendant was a drug addict.

14.For that reason, I find it enough to support the defendant’s claim put forward by his counsel in mitigation that some of the drugs were for his own consumption. I also find that it is not inconceivable that the defendant was given a discount on the drugs for helping to deliver it.

15.I will grant the defendant the benefit of the doubt and sentence him as if half of the drugs was to be for his own consumption. This half will of course, according to authorities, also carry its own sentence[2].

16.On that basis, I will adopt a starting point of 51 months’ imprisonment for the trafficking of 3.165g of methamphetamine hydrochloride content and a starting point of 12 months’ imprisonment for the simple possession of the other half of the drugs. The total starting point is therefore 63 months’ imprisonment.

17.The defendant is granted the full one-third discount for his guilty plea and sentenced to 42 months’ imprisonment.

Please refer to CACC165/2014 for the relevant appeal(s) to the Court of Appeal.