HKSAR v. TSE KWOK HING

HCCC 264/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 264 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant has been convicted on his own plea of one charge of trafficking in dangerous drugs. The guilty plea was entered at the Eastern Magistrates’ Court on 7 August 2017.

The Particulars of Offence provide that on 30 November 2016, at 6th Floor, No 258 Lai Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 24.46 grammes of a solid containing 23.65 grammes of methamphetamine hydrochloride (commonly known as the ‘Ice’ drug) and 0.35 gramme of a solid containing 0.26 gramme of ketamine.

The Summary of Facts which has been admitted by the defendant provides that at about 2240 hours on 30 November 2016, police mounted an anti-narcotics operation in plainclothes on Ground Floor, 258 Lai Chi Kok Road, Sham Shui Po, Kowloon (“the Building”).

At about 2324 hours on the same day, a male, surnamed Ng, opened the gate and the door to a flat on 6th Floor of the Building (“the Flat”). Police officers intercepted Mr Ng for inquiry and revealed their police identity. Upon body search, nothing was found on Mr Ng who was allowed to leave later.

Police then executed a search warrant inside the Flat (a total of nine sub-divided rooms were found therein) and the defendant was found inside Room 2. Upon further inquiry, it was revealed that the defendant rented Room 2, Room 5 and Room 8 inside the Flat. Thereafter, a systematic search was carried out in all the nine sub-divided rooms.

At about 0128 hours on 1 December 2016, inside Room 5 of the Flat, the following items were found:

(1) One electronic scale.

(2) A plastic box in blue containing a metal spoon.

(3) Four stacks of transparent resealable plastic bags.

(4) Plastic container which contained 14 plastic bags of suspected dangerous drugs.

The defendant has cash of HK$26,922 and two mobile phones at the time of his arrest.

The 14 plastic bags of suspected dangerous drugs were later confirmed to contain 24.46 grammes of a solid containing 23.65 grammes of methamphetamine hydrochloride (a salt of methamphetamine) and 0.35 grammes of a solid containing 0.26 grammes of ketamine.

The defendant was then arrested and under caution, he claimed all the ‘Ice’ was for his own consumption.

Subsequently a video-recorded interview was conducted with the defendant. Under caution, the defendant stated, inter alia, the following:

(1) The defendant explained that ‘Ice’ meant methamphetamine.

(2) He bought the dangerous drugs from ‘Ah Wai’ one or two days ago before the offence date. The defendant did not have the full name and means of contact of Ah Wai.

(3) The defendant used HK$1,800 to purchase all the dangerous drugs.

(4) There were eight to nine others living in the flat.

(5) The defendant rented Rooms 2, 5 and 8 since more than one year ago.

(6) Nobody never visited Rooms 2, 5 and 8; nobody knew about the dangerous drugs inside the Flat.

(7) The defendant was unemployed and being a CSSA recipient.

(8) The money and two mobile phones seized in his possession was his personal savings and were for daily usage respectively, which he claimed to be unrelated to the offence.

(9) The defendant had been a drug addict since the age of 18.

(10) The defendant would consume one to two grammes of dangerous drugs daily.

(11) The defendant would smoke the dangerous drugs with the glass bottle.

(12) The defendant used the transparent resealable plastic bag for limiting the amount of ‘Ice’ he consumes daily.

(13) The defendant used the transparent resealable plastic bags for containing ornaments, earrings and rings.

(14) The defendant rented Room 2, Room 5 and Room 8 at HK$1,400 per month.

As at December 2016, the estimated retail value of the methamphetamine seized is about HK$8,170 and that for the ketamine seized is about HK$111.

The defendant now admits and accepts that he was trafficking in the dangerous drugs seized in this case.

By way of personal background, the defendant is 45 years of age. He was born in Hong Kong in March 1972. He has received education up to Secondary Form 1 level. I am told that he was unemployed at the time of his arrest, but he did work from time to time as a casual transportation worker and a casual cleaning worker. He is single and he lived alone at the address in Sham Shui Po.

The defendant has 39 previous criminal convictions, seven of which are for possession of dangerous drugs. His last conviction for possession of dangerous drugs was recorded on 3 March 2015 for which the defendant was sentenced to 4 months’ imprisonment suspended for 24 months. Hence, the present offence was committed during the operative period of the suspended sentence.

In mitigation, Mr Woon on behalf of the defendant, informed the court that it was ‘Ah Wai’ referred to in the Admitted Facts who had recruited the defendant to be store keeper of the dangerous drugs, and the defendant was to be paid $500 per day.

Two mitigation letters have been handed up to the court, their contents are duly noted.

The dangerous drugs involved in the present case is, firstly, 24.46 grammes of a solid containing 23.65 grammes of methamphetamine hydrochloride.

In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal held that for trafficking in between 10 and 70 grammes of the ‘Ice’ drug, the proper tariff to be imposed, after trial, is 7 to 11 years’ imprisonment.

In my view, based on the quantity of methamphetamine hydrochloride involved (23.65 grammes), the proper starting point for sentence in the present case should be 7 years and 10 months’ imprisonment.

As to the 0.35 gramme of a solid containing 0.26 gramme of ketamine, in my view, even if that were a quantity of the much more serious drug ‘Ice’, it would not have made a great difference to the starting point. In the circumstances, I do not think it would be appropriate to increase the starting point on account of the ketamine found in this case.

I shall give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 5 years and 2 months’ imprisonment.

I see nothing unjust in ordering the 4-month suspended sentence to be activated in full, to run consecutively to the sentence in the present case, and I so order. The total sentence which the defendant has to serve is, therefore, 5 years and 6 months’ imprisonment.