HKSAR v. TSE CHI KWONG

DCCC 998/2023

[2024] HKDC 1986

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 998 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to the Summary of Facts.

Facts

2.  On 23 March 2023, police entered Room 1828 of Ping Chun House with a search warrant. Upon entry, police saw the defendant standing and holding a plastic packet containing 0.2 gramme of a mixture containing 0.16 gramme of heroin hydrochloride in his right hand. The same was seized.

3.  Upon arrest of the defendant and under caution, he said that “the 4 chai was opened for my own consumption.”

4.  A house search of Room 1828 was done in the presence of the defendant and the following items were seized:

(i)  On the table:

(a)  one transparent resealable plastic bag containing 10 packets containing a total of 6.05 grammes of a mixture containing 4.99 grammes of heroin hydrochloride;

(b)  one transparent resealable plastic bag containing 3.48 grammes of a mixture containing 2.86 grammes of heroin hydrochloride;

(c)  one transparent resealable plastic bag containing 1.58 grammes of a crystalline solid containing 1.58 grammes of methamphetamine hydrochloride (“ICE”);

(d)  one plastic bottle containing 4 millilitres of a liquid containing methamphetamine;

(e)  one electronic scale;

(f)  one bundle of transparent resealable plastic bags;

(g)  4 notebooks.

(ii)  In a cabinet of a bunk bed:

(a)  17 foil packs containing a total of 167 tablets containing 2.25 grammes of midazolam;

(b)  one transparent resealable plastic bag containing 4 foil packs containing a total of 40 tablets containing 0.55 gramme of midazolam.

(iii)  In a television cabinet, cash of HK$117,700 was seized.

2.  In the video-recorded interviews conducted with the defendant on the next day, the defendant confirmed that he was aware of the drugs seized being heroin, ICE and midazolam, and he was the tenant of Room 1828.

3.  Government chemist also confirmed the narcotic contents of the dangerous drugs seized.

4.  The total estimated street value of the drugs seized was around HK$13,490.

Criminal Record

5.  The defendant has 16 criminal records involving convictions of 17 charges, of which 9 are drug-related, none similar to the present charge.

Mitigation

6.  The defendant is aged 61. He was locally born and has received education up to Primary 6. He is divorced, living with his son aged 23. He was unemployed at the time of arrest and he is living on CSSA.

7.  Defence counsel worked out the notional sentencing starting point for trafficking in heroin hydrochloride and ICE in this case, and the notional sentencing starting point ranged between 60.4 months’ imprisonment to 82 months’ imprisonment, using the three tests: absurdity test, conversion test and ratio test.

8.  Initially, defence counsel submitted that majority of the drugs seized was for the defendant’s own consumption, but later he withdrew the same and said that part of the drugs seized was for the defendant’s own consumption. He said that the urine test performed on the defendant 3 days after his arrest supported the defendant had a drug addiction habit. He asked this court to exercise its discretion to reduce the sentence by reason of the defendant’s self consumption of part of the drugs.

9.  He also submitted that the defendant should be entitled to one-third sentencing discount by reason of his guilty plea.

Discussion

10.  Before sentencing, this court has carefully considered the submissions from the prosecution and the defence counsel as well as the urine test report of the defendant and the legal authorities cited.

11.  On conviction upon indictment, the maximum sentence for the charge is a fine of $5 million and imprisonment for life.

12.  Both the prosecuting counsel and defence counsel has worked out the notional sentencing starting point using the three tests, and the court considers that applying the ratio test is the most appropriate in arriving at the sentencing starting point in this case.

13.  The amount of midazolam involved in this case is 207 tablets totalling 2.8 grammes and is of comparatively little quantity compared to that of heroin and ICE.

14.  The total quantity of ICE and heroin is 9.59 grammes. The ICE represents 16.48% whereas heroin represented 83.52% of the two types of the narcotics.

15.  Assuming all drugs trafficked were ICE (just counting the quantity of heroin and ICE), the sentence would be 82.03 months’ imprisonment. Assuming all drugs trafficked were heroin, the sentence would be 58.52 months’ imprisonment.

16.  Then applying the ratio test, the sentencing for trafficking the ICE in question would be 13.52 months’ imprisonment and the sentence for trafficking heroin in question would be 48.88 months’ imprisonment, making a total sentence for the two drugs in question 62.4 months’ imprisonment.

17.  Further, taking into consideration of the presence of 207 tablets of midazolam, the court would adopt the sentencing starting point of 63 months’ imprisonment.

18.  The presence of three types of drugs is an aggravating feature, for which the court is enhancing the sentencing starting point by 3 months. The appropriate sentencing starting point is therefore 66 months’ imprisonment.

19.  Trafficking in dangerous drugs is a serious offence. In the usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.

20.  The defendant has pleaded guilty and by reason of that, he is entitled to full one-third sentencing discount. He is therefore sentenced to 44 months’ imprisonment.

21.  This court notes that the defendant himself is a heroin and ICE abuser. For this reason, the court accepts that part of the drugs was for his own consumption, and is willing to discount the sentence further by 2 months to 42 months’ imprisonment.

22.  The defendant is sentenced to 42 months’ imprisonment in this case.