HKSAR v. Tang Kwong Fung

DCCC 776/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 776 OF 2014

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Reasons for Sentence (for D1)

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1.There are two defendants in this case. D1 pleaded guilty to his charge (charge 1) of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, on the first day of trial and was sentenced on the same day.

2.This Reasons for Sentence deals only with D1 on charge 1.

Summary of Facts

3.Patrolling Police officers spotted D1 and D2 in the sitting-out area at the junction of Shanghai Street and Shan Tung Street at around 11:34pm on 7 June 2014. One of the men was seen counting money. When the Police officers approached them to investigate, they turned and walked away. The officers shouted for them to stop and they did. Upon search, a transparent re-sealable plastic bag containing crystallized substances was found from the bag that one of the men was carrying. Police officers suspected them to be dangerous drugs and declared arrest and cautioned that man. It is not disputed that this man was D1.

4.Under caution, the other man said that someone gave him $7,500 to get some ‘coke’. The Police officer asked that man if by ‘coke’ he meant cocaine and that man said ‘yes’. Police officers thereby declared arrest on him for trafficking in dangerous drugs and cautioned him. At a subsequent video recorded interview, this man confessed that he was offered $1,100 by someone to collect cocaine from D1 that night. It was held after trial that this other man was therefore attempting to traffic in the dangerous drug that was found on D1 at the time of their arrest. D2 is this other man.

Previous conviction

5.D1 has one previous conviction dated 10^th September 2012 when he was sentenced to the Training Centre at Kowloon City Magistracy for trafficking in dangerous drugs. He was discharged on 8^th March 2014.

Mitigation

6.The defendant is 17 years old. He worked as a waiter after finishing his form 1 education, earning about $8,000 per month. At the time of the commission of the offence he had been unemployed for 1 month. The defendant lives with his parents, 2 elder sisters and one younger brother. I am told that the defendant committed the offence out of greed to earn some quick money. Mr. Law accepts that the defendant’s guilty plea is his only mitigating factor. Mr. Law suggested the court to obtain reports on the defendant. Mr. Law did not suggest at any time that the defendant is a drug addict, nor that any of the drugs in charge 1 were for D1’s own consumption.

Sentence

7.The maximum sentence for trafficking in dangerous drugs on conviction on indictment is that of a fine of $5 million and imprisonment for life. Sentencing guidelines for trafficking in heroin as set down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of a quantity between 10 and 50 grammes is that of 5 to 8 years’ imprisonment.

8.Trafficking in dangerous drugs is an excepted offence and as such s.109A of the Criminal Procedure Ordinance does not apply and imprisonment need not be the last resort when sentencing the defendant who is under 21 years old.

9.Furthermore, I find that the defendant’s age of 17 cannot be categorized as extreme youth and will not be given much weight in mitigation. In the case of Attorney-General v Kong Kin-man [1997] HKLRD 350, it was stated that:

“(2) Age, whether youth or old age, carried little weight in drug trafficking offences. It was only in rare cases that detention in a training centre was appropriate on a conviction for drug trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed). There was a considerable public interest involved in showing by deterrent sentences that the courts would treat drug trafficking most severely.”

10.I find therefore that there would be no point in calling for reports since there are clearly no exceptional circumstances that would allow me to depart from the sentencing guidelines.

11.I find the fact that this is the defendant’s second trafficking in dangerous drugs conviction and the fact that he committed the present offence just 3 months after his discharge from the Training Centre are aggravating factors.

12.The defendant committed the offence for a monetary reward. It is clear from the facts that he was not just selling small packets of drugs to individual buyers, but passing on the whole bag of 23.55g of substance to one person. It is likely that the defendant was merely being exploited by those behind him. Be that as it may, I find that there is a need for the sentence to incorporate an element of deterrence so that young people are made aware that should they choose to take part in dealing with drugs, they will have to bear the full consequences of their choices. The court will not be lenient just because they are relatively young.

13.If there had not been any aggravating factors, I would have adopted a starting point of 69 months’ imprisonment for the 22.34g of cocaine being trafficked. However, given the aggravating factors of this being the defendant’s second trafficking conviction and the fact that he committed the present offence just 3 months’ from his discharge from the Training Centre, I will raise the initial starting point to that of 75 months’ imprisonment.

14.Although the defendant’s age does not fall into the extreme youth category and the authorities suggest that age should carry little weight in mitigation, I will nevertheless reduce the starting point by 3 months on account of the defendant’s relatively young age.

15.The final starting point is therefore that of 72 months’ imprisonment for the 22.34g of cocaine that D1 trafficked in. I grant the defendant the full one-third discount for his guilty plea and sentence him to 48 months’ imprisonment on charge 1.