HKSAR v. TSE CHI HONG

DCCC 527/2018

[2019] HKDC 284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 527 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges: trafficking in dangerous drugs[1], driving without a valid licence[2] and using a motor vehicle without third party insurance[3].

Summary of facts

2.  At around 8:10pm on 19 March 2018, the defendant was seen standing next to a vehicle stopped outside Ching Yuk House of Tsz Ching Estate in Tse Wan Shan after he had gotten out of it together with the front passenger.

3.  Police officers intercepted and searched the defendant but found nothing suspicious on his person.  Upon search of the vehicle, a large transparent re-sealable plastic bag was found inside a tissue box inside the visor of the front passenger seat.  Inside the bag was 28 small transparent re-sealable plastic bag containing cocaine.

4.  The defendant was arrested for trafficking in dangerous drugs.  Under caution, he said to the Police officers that the cocaine belonged to himself, that he had not sold it yet, and that it did not concern his brother.

5.  Police dog was summonsed to perform a further search of the vehicle.  4 small transparent re-sealable plastic bags with cocaine inside were found wrapped inside some tissue papers placed underneath the carpet of the driver’s seat.

6.  Under further caution, the defendant said he had thrown the 4 packets of cocaine upon seeing the Police officers, and that it did not concern his brother.

7.  In the subsequent video recorded interview, the defendant admitted to helping out a friend of his to traffic in cocaine for money.  He was to be paid $50 for each packet of cocaine sold at $300 per packet.  At around 7pm on the day of his arrest, he collected the key to the vehicle from an unknown person, drove to Sau Mau Ping to pick up his cousin.  The cocaine in the car were put there by the said friend who had told the defendant about it.  The 4 packets of cocaine were separated from the rest because they had already been sold.

8.  The defendant did not have a full driver’s licence, just a learner’s one.  He did not know if the vehicle was insured or not, and he had no idea what third party insurance was.  Investigation revealed that the learner’s licence the defendant spoke about had already expired at the time of the incident.

9.  The dangerous drugs found in the defendant’s possession were examined by the Government Chemist and confirmed to be a total of 6.45g of a solid containing 6g of cocaine, with an estimated street price of $7,959.30.

Previous convictions

10.  The defendant has one conviction for unlawful detention.  He was sentenced about two weeks ago on 13 February 2019 to 31 months’ imprisonment for the earlier offence, which was committed on 15 August 2017.  Mr Lo for the defendant, Ms Lam for the prosecution and the defendant himself each confirmed that the present set of offences were committed whilst the defendant was on bail for the unlawful detention case.

11.  The defendant was convicted after trial in that case and is in the process of appealing against his conviction.

Mitigation

12.  The defendant is 22, educated up to form 4 level.  He was working as a part-time transportation worker earning around $15,000 per month, but due to insufficient work, his income had fallen in the period before his arrest.

13.  The defendant’s father passed away when he was one.  The defendant and his elder sister had to stay with their paternal grandmother and their uncle after their mother left them to be re-married in mainland China.  Their mother did not keep in touch.

14.  Although living together, the defendant’s grandmother was too old and frail to look after them, while the uncle was a drug addict.  The family relied on CSSA but a lot of the time the money would be taken by the uncle for drugs.  They often had to borrow from neighbours in order to survive.

15.  After the grandmother passed away in 2012, things got worse for the defendant and his sister.  The uncle would assault them and the sister was sent into coma by their uncle after one such beatings. The social welfare department took over their case and the defendant’s sister was sent to a foster family while the defendant was placed under a Care and Protection Order and went to stay with different relatives.

16.  A urine test was conducted on the defendant on 22 March 2018 and it came back positive for cocaine.  It was put forward in mitigation that 3 to 4 packets of the cocaine in the defendant’s possession was for his self-consumption.

17.  In response, the prosecution pointed out that the defendant had said in his video recorded interview that the 4 packets underneath his own chair was separated from the rest because they had been marked as sold to a certain buyer.  As for the rest of the packets, they were all for sale, although they had not been sold yet.  There was no mention that any of the packets were for his self-consumption.

Maximum sentences

Trafficking in dangerous drugs

18.  The maximum sentence for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life.

Driving without a valid licence

19.  Since this is the defendant’s first conviction, the maximum penalty for the offence of driving without a valid licence is a fine of $5,000 and imprisonment for 3 months.

No third party insurance

20.  The maximum penalty for the offence of driving without third party insurance is that of a fine of $10,000 and imprisonment for 12 months.  Furthermore, a person convicted of this offence shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.

Sentencing considerations

Trafficking in dangerous drugs

21.  The sentencing guidelines laid down in R v Lau Tak-ming [1990] 2 HKLR 370 for trafficking in the drug of heroine was held in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 to be applicable to cocaine as well.

22.  The band of tariff for trafficking up to 10g of cocaine is that of 2 to 5 years’ imprisonment.

23.  An arithmetical application of the said tariff sentence to 6g of cocaine would lead to a starting point of 45 months’ imprisonment.  This is the starting point I adopt.

Self-consumption

24.  In order to be granted a reduction in sentence on the ground of part of the drugs being for self-consumption, the amount for self-use must be “a significant proportion” [4] of the seized drugs.

25.  In the case of HKSAR v Liu Ming-sze (廖銘詩), the Court of Appeal found that a quantity of up to 10% did not fall to be regarded as a “significant proportion” for the purpose of a reduction in sentence for self-consumption.

26.  In our present case, even if I am to accept that some of the seized drugs were meant for the defendant’s self-consumption, 4 out of 32 transparent re-sealable plastic bags of cocaine would amount to only 12.5% of the total quantity.  This cannot be regarded as a “significant proportion”.  As such, the suggested range of discount set out in HKSAR v Chow Chun Sang would not be relevant and there is to be no reduction in sentence based on self-consumption.

27.  Mr Lo submitted that I should exercise my discretion to reduce the sentence based on self-consumption despite the fact that the quantity cannot be regarded as forming a significant proportion of the seized drugs.  I do not find that I should do so for the following reason.

28.  As mentioned above, there are established principles governing reduction in sentence for self-consumption.  Based on those principles, the defendant is not entitled to a discount.  To depart from the guideline sentence in ignorance of those principles would lead to inconsistency in sentencing and a sense of unfairness in other defendants.  This is to be avoided and is the reason why I maintain that there be no such reduction granted.

Aggravating and mitigating factors

29.  The fact that the defendant had committed the present set of offences whilst on bail for the unlawful detention case is a serious aggravating factor.

30.  For this, I find that the sentence for the trafficking charge should be enhanced by 3 months’ imprisonment, taking the sentence to 48 months’ imprisonment.

31.  As for mitigating factors, although I do sympathize with what the defendant had to go through as a young person, his personal circumstances are not such that would warrant a departure from the sentencing guidelines.  The only mitigating factor remains the defendant’s guilty plea.

32.  The discounted sentence is that of 32 months’ imprisonment.

Driving without licence

33.  The defendant obtained the key to the vehicle at around 7pm on the day of the arrest.  Since he was intercepted by Police officers at around 8:10pm, he would have been using the vehicle for at most 1 hour 10 minutes.

34.  There is no evidence as to his manner of driving during that period of time, nor as to whether he will continue to drive afterwards.  The defendant was driving the vehicle in the course of his trafficking and not for some innocuous purpose.  Having said that, he is already being punished for the trafficking and the sentence must acknowledge this overlap.

35.  Given the short period of time that the defendant had driven and his plea of guilty, I find that a short custodial sentence is sufficient punishment in the circumstances.

36.  I adopt a starting point of 6 weeks’ imprisonment, discounted to 4 weeks upon the defendant’s plea of guilty.

Driving without third party insurance

37.  As mentioned above, the defendant had driven the uninsured vehicle for around 1 hour and had driven from Sau Mau Ping to Tsz Wan Shan, which is about 7 kilometres’ distance.

38.  This is a more serious offence than driving without a licence as reflected in the higher maximum sentence, no doubt because of the possibility of someone involved in an accident with the uninsured vehicle ended up having no or inadequate monetary compensation.

39.  I find that an immediate custodial sentence is required in the circumstances.  I adopt a starting point of 3 months’ imprisonment, discounted to 2 months upon the defendant’s timely plea of guilty.

40.  Pursuant to s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, the defendant is disqualified from obtaining a driving licence for a period of 12 months.

Totality

Totality within the present proceedings

41.  The use of the vehicle was in connection with the trafficking.  The commission of the second and third offences was part and parcel of the commission of the trafficking offence.  I order that the sentences in all 3 charges be served wholly concurrently.

42.  The defendant is, therefore, sentenced to a total of 32 months’ imprisonment for the 3 charges in addition to his disqualification for charge 3.

Totality in relation to the unlawful detention case

43.  Although the defendant is in the process of appealing the earlier conviction, I will proceed to apply the principle of totality as is.

44.  The overall sentence for the two cases must not be such as to have a crushing effect on the defendant so that he will not be able to recover from the punishment.

45.  If the sentences of the two cases are allowed to run consecutively, the defendant would be incarcerated for a total of 63 months, or 5 years and 3 months.  This sentence would have a crushing effect on the defendant and is out of proportion to the overall criminality of the acts of the defendant, given the circumstances of the cases, in particular his age and background.

46.  Taking a step back, I will order that half of the present 32 months sentence to be served consecutively to the earlier 31 months sentence, the balance to be served concurrently.

47.  The defendant is, therefore, to serve a total of 47 months’ imprisonment for the two cases.