HKSAR v. Tsang Nok Tik

DCCC 768/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 768 OF 2014

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

The facts

2.Around 4:15 am on 7 July 2014, the defendant was stopped by the police outside Ground Floor, Ngan On House, Kam On Court in Ma On Shan.  Upon police enquiry, the defendant took out from his waistband one clear resealable plastic bag containing 8 smaller resealable plastic bags containing a total of 1.69 grammes of a solid containing 0.93 gramme of cocaine.  The defendant told the police that it was “coke”.  Under caution, he claimed that the cocaine was for his own consumption.  The defendant was then taken to the Ma On Shan Police Station for a further search.  During this search, the defendant pulled out from his underpants 2 clear resealable plastic bags wrapped in a piece of tissue paper.  One of these 2 plastic bags contained 44 smaller resealable plastic bags containing a total of 9.26 grammes of a solid containing 5.00 grammes of cocaine; the other bag contained 49 smaller resealable plastic bags containing a total of 10.36 grammes of a solid containing 5.57 grammes of cocaine.  Under caution, the defendant claimed that these quantities of cocaine were for his own consumption.

3.The defendant was thus in possession of a total of 21.31 grammes of a solid containing 11.50 grammes of cocaine for the purpose of unlawful trafficking.  The street value of the cocaine seized was HK$21,821.  At the time of his arrest, the defendant had on him 2 mobile phones and cash of HK$2,825 in different denominations.  No suspicious items were found during a search of his home in Ngan On House.

Defendant’s background

4.Defendant is 18 years of age.  He has a clear record.

5.He is single and was living with his parents at the time of the offence.  He was educated to Form 2 level and left school at the age of 16.  Thereafter he has been engaged as a decoration worker on a part-time basis.

6.According to the antecedent statement, he started taking drugs around January 2014.

Mitigation

7.According to the defendant’s counsel Mr Li, the defendant has a decent family.  His father is a law clerk, his mother is an administrator with Town Gas.  The defendant was able to do well both academically and behaviourally when he was in primary school, but after moving up to secondary school, his academic performance took a turn for the worse, so much so that he left school after completing Form 2 and started working as a decoration worker.  After working for about a year, when he did not get as much work as he used to, he started frequenting game arcade centres, where he started associating with dubious peers who not only supplied him with drugs but persuaded him to carry drugs for them for a reward.  The day of arrest was the day when the defendant finally succumbed to these peers’ persuasion and agreed to carry drugs for them for a reward of $1,000.  However, this drug delivery venture was foiled by the police.  The defendant is remorseful for having committed the present offence, and has cut off his associations with these peers.

8.As an expression of his remorse, the defendant pleaded guilty and offered his full cooperation with the police.  During his detention for the present offence, the defendant has applied to IVE for courses that might one day enable him to work in the fields of plumbing and/or electricity.

9.His counsel tells me that the cocaine that the defendant took out from his waistband was for his own consumption.  (see paragraph 3 of the Summary of Facts).

10.In his mitigation letter, the defendant sets out how he got involved in trafficking in drugs.  Basically it was out of greed and a desire to make easy money that he agreed to carry drugs for others.  He says he feels sorry for what he has done, and for making his family worry so much for him.  He is determined to turn over a new leaf and he urges the court to be as lenient with him as possible.

11.The defendant’s parents express their regret for what the defendant has done, and they promise to give the defendant as much care and counselling as possible after his release, in the hope that the defendant will become a useful member of the society.

Sentence

12.Trafficking in dangerous drugs is a very serious offence, the maximum sentence for which is life imprisonment upon conviction on indictment.

13.The Court of Appeal has laid down sentencing guidelines for trafficking in various types of drugs.

14.The Court of Appeal has also said from time to time that in offences of this nature, the defendant’s clear record and relative young age will carry little, if any, weight in mitigation: see eg HKSAR v Evelyn Ayad Bugaay CACC 41/2007; HKSAR v Abdallah [2009] 2 HKLRD 437.

15.The guidelines in R v Lau Tak Ming [1990] 2 HKLRD 370 apply to trafficking in heroin and cocaine of up to 600g: HKSAR v Abdallah (cited above).  Under those guidelines, for trafficking between 10g and 50g of cocaine, the range of sentence is 5 to 8 years imprisonment.

16.In our case, had the entire amount of 11.50 grammes of cocaine been intended for trafficking, a starting point of 5 years imprisonment would be appropriate.

17.Regarding the defendant’s claim that the drugs mentioned in paragraph 3 of the Summary of Facts, ie 1.69 grammes of a solid containing 0.93 grammes of cocaine was for his own consumption, given the small proportion that this quantity of cocaine bears to the total quantity of 11.50 grammes (about 4%), I do not think that this is an appropriate case where any meaningful discount of the basic starting point should be given for self-consumption.  In any event, the latent risk factor associating with possession of this quantity would probably cancel out any discount to be given for self-use.

18.I would therefore adopt a starting point of 5 years, which is the lowest sentence in the range of sentence for trafficking in between 10 grammes and 50 grammes of cocaine.

19.For his plea of guilty, which is the only mitigation of substance, the defendant is entitled to 1/3 discount, resulting in a sentence of 40 months imprisonment.  This is the sentence the defendant gets.