HKSAR v. TSE NGA LIK, ERIC (also known as TSE NGA LIK)

DCCC 251/2021

[2021] HKDC 1341

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 251 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is methamphetamine hydrochloride, commonly known as "ICE".

Summary of Facts

2.  About 1:05 a.m. on 23 October 2020, PC 27510 stopped the defendant near the junction of Mei King Street and Lok Shan Road in To Kwa Wan for enquiry.

3.  Upon search, inside the defendant's left front trouser pocket, 4 plastic bags and 1 electronic scale were found. The 4 plastic bags were subsequently found to contain a total of 1.34 grammes of a crystalline solid containing 1.34 grammes of methamphetamine hydrochloride.  Under caution, the defendant admitted, inter alia, that an unknown male had asked him to pick up the ICE from the staircase and deliver the drug to a male who would approach him at the main entrance.  The defendant would receive $100 as a reward for doing so.

4.  In his video interview, the defendant admitted the same and gave further details regarding his intended delivery.  He claimed that he was arrested before he could deliver the drug.  He knew that the plastic bags contained ICE.  He used the electronic scale for weighing the drug.

Mitigation & Sentence

5.  The defendant is 51 and has 5 conviction records, which included 6 drug-related offences. Defence counsel Ms. Moosdeen informed me that the defendant's wife resides in Thailand; they have no children.  The defendant sends his wife money each month.  The defendant's mother is aged 70 and of poor health.  The defendant's sister now looks after her. 

6.  In mitigation, Ms. Moosdeen submitted that the defendant used to work as a designer.  Owing to the pandemic, he lost his job in 2020.  He only managed to take up casual decoration jobs earning about $10,000 per month.  In order to relieve pressure and to boost his energy for overtime work, the defendant resorted to ICE again.  On the day of his arrest, the defendant went to the location to collect the ICE he bought for self-consumption.  He discovered that the quantity exceeded what he had ordered and paid for.  He contacted the seller and was asked to deliver the excess amount to someone downstairs.  In return, the defendant would receive $100 as his reward.

7.  Ms. Moosdeen also informed me that in February 2021, the defendant was diagnosed with nasal cancer.    He has received both electro and chemo therapy whilst in jail custody.  He currently suffers from the typical post-treatment side effects including body weakness, nausea, dizziness, poor appetite and difficulty in swallowing.  Ms. Moosdeen complained that in late August 2021, those instructing her have written to Queen Elizabeth Hospital (QEH)  to request for a comprehensive medical report of the defendant.  Yet, only a report from the Occupational Therapy Department was received; and its contents are not helpful at all.  Hence, I adjourned sentencing for 3 weeks and ordered a comprehensive medical report of the defendant to cover areas including his life expectancy and chances of recovery.

8.  To my disappointment, the medical report written by a Dr. Tse of Lai Chi Kok Reception Centre is not comprehensive at all.  Dr. Tse states that he has no information regarding the defendant's life expectancy or chances of recovery because his cancer treatment was performed at QEH; and such medical opinion needs to be obtained from the Hospital Authority.  I am afraid my jurisdiction for pre-sentencing medical reports does not extend to the Hospital Authority.  The request for a comprehensive medical report was made by defence in a timely fashion and the required fees were duly paid.  Yet, no proper product was delivered.  I urge the Director of Legal Aid to take up this matter with the Hospital Authority.

9.  Drug abuse has always been a 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 or courier)  and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.  The defendant trafficked in 1.34 grammes in the present case.  Applying a strict arithmetical approach, the appropriate starting point is 3.5 years.

11.  The defendant is no stranger to drug-related offences, but I accept that this is his 1^st "trafficking" conviction.  A starting point of 3.5 years' imprisonment is appropriate and just.  With his timely guilty plea, the sentence is reduced to 28 months.   I am aware of (and prosecuting counsel Mr. Chong has confirmed)  the defendant's assertion in his video recorded interview that the bigger packet was for his own consumption and the other 3 packets were to be brought to someone[1].  Based on the small quantity of ICE involved in this case[2], no meaningful discount for self-consumption can be granted and I am not prepared to do so.

12.  On the other hand, it appears that the defendant was diagnosed with nasal cancer during his remand period (i.e. post-offence).  According to Dr. Tse's report, the defendant has completed his chemo-radiotherapy in July 2021; and his general health condition remains unremarkable.  For medical reasons and on humanitarian grounds, I will grant the defendant a further discount of 2 months.  I sentence him to 26 months' imprisonment.