HKSAR v. TANG KWOK CHIU AND ANOTHER

DCCC 1142/2022

[2024] HKDC 1116

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1142 OF 2022

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REASONS FOR SENTENCE

Both D1 and D2 pleaded guilty to a joint charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.  About 12:40 a.m. on 2 September 2022, a private car RM6756 ("the Car")  was parked outside a primary school situated at No.38 Chik Fuk Street, Tai Wai, Shatin.  Police officers found D1 in the driver's seat; whereas D2, the front passenger seat.

3.  The Car was searched.  On the front passenger seat, 3 resealable plastic bags which contained a total of 0.63 gramme of a solid containing 0.57 gramme of cocaine (E1)  wrapped in a piece of tissue paper were found.  Both D1 and D2 were arrested for "simple possession".  Under caution, D1 said he received $1,000 to drive the Car; and D2 said the packet of coke was for self-consumption.

4.  Upon a further search, the following items were found inside a storage compartment behind the gear stick :-

(i)  20 resealable plastic bags which contained a total of 4.27 grammes of a solid containing 3.86 grammes of cocaine (E2);

(ii)  9 resealable plastic bags which contained a total of 1.83 grammes of a solid containing 1.66 grammes of cocaine (E3); and

(iii)  60 resealable plastic bags which contained a total of 12.8 grammes of a solid containing 11.6 grammes of cocaine (E4).

5.  Both D1 and D2 were further arrested for "trafficking".  Under caution, D1 said he was only responsible for driving and would go wherever D2 asked him to go; and D2 said all the coke found in the Car was for self-consumption.

6.  D1 was the registered owner of the Car.

7.  Both defendants now admit that they were in joint possession of E1 to E4 for the purpose of unlawful trafficking.

Mitigation

D1

8.  He is 27, single and has a clear record (though in breach of a bind over order in relation to violence). His counsel Mr. Ng informed me that D1 comes from a family of 6 children; he being the youngest.  D1 joined the work force in 2015 after completing F.5.  Prior to his arrest, he was a part-time driver earning about $15,000 per month.  In September 2021, he enrolled in a Yi Jin diploma course with a view to preparing himself to apply for the Fireman post.

9.  In mitigation, Mr. Ng submitted that by attending the Yi Jin course, D1 did not have much time to engage in part-time driving, which resulted in a significant income drop.  The $20,000 tuition fee also brought him into financial hardship.  Why D1 decided to attend the Yi Jin course is a separate story, which I need not repeat here.  According to Mr. Ng, D1 has known D2 through a friend for about half a year.  They would get together for dinner once a month.  Prior to the offence, D2 asked D1 if he wanted to make some quick money by helping D2 as a driver, from which D1 could earn $1,000 per day.  D1 foolishly accepted the offer.

D2

10.  He is 22 and single.  He has one conviction record of a "Gambling" offence, for which he was fined $900. His counsel Mr. Cheung informed me that D2 resides with his father (aged 42)  and 2 siblings (aged 17 and 13).  D2's mother is serving her sentence in Lo Wu.  Prior to the present case, D2 had been unemployed for half a year.  Before that, he was a warehouse worker earning about $10,000 per month.

11.  In mitigation, Mr. Cheung submitted that D2 is only educated up to Secondary 1.  His father is unemployed; whereas his 2 siblings are still in school.  The whole family relies on social welfare and can hardly make ends meet.  Mr. Cheung explained that on the day of the offence, D2 was riding in the Car helping others to deliver drugs as a courier in return for $3,000 to $4,000 as his reward. 

Sentence

12.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment.

13.  As a judge, I see day in and day out people in my court being charged with "drug trafficking".  Many of them were just like D1 and D2 – persons in their 20s who got involved with dangerous drugs for various reasons.  When members of the public realize that the court would not treat drug traffickers lightly, there would be, hopefully, fewer willing souls; thus making it difficult for criminals to exploit them.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make the public think twice before they agree to be "used".

14.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the range is 5 to 8 years' imprisonment.

15.  I have borne in mind what both defence counsel had said during mitigation.  D1 and D2 might have played different roles, but their culpabilities are the same.  In the present case, they jointly trafficked in 17.69 grammes of cocaine.  Applying a strict arithmetical approach, the starting point should be 67 months' imprisonment.  For ease of calculation, I adopt 66 months as the starting point.  With the timely guilty plea, the sentence becomes 44 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence each defendant to 44 months' imprisonment.