HKSAR v. TONG CHEUNG SANG

HCCC 384/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 384 OF 2016

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

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COURT: The defendant pleaded guilty before me to one count of trafficking in a dangerous drug.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

On 12 March 2016 the defendant was stopped by police officers when he came out from his home. A search was then conducted at his home. There, two plastic bags, each containing five plastic bags of “Ice”, were found inside an optical glass case put on a table beside the defendant’s bed. A bowl, a spoon and electronic scale and lighter and some resealable plastic bags were also found on that table.

Under caution, the defendant said the “Ice” was for his own consumption and would be sold to other persons for $200 per packet to make a little profit.

The total quantity of the dangerous drug found were 30 grammes of a crystalline solid containing 29.75 grammes of methamphetamine hydrochloride.

The defendant is 62 years of age. He had received education up to Primary 2. He had been a recipient of CSSA since 2007. He has divorced and has a daughter 19 years old. He is living alone in a public housing flat.

The defendant has a bad record. On nine previous occasions he had been convicted. He was first convicted in 1971 for offences including possession of dangerous drug. He was put on probation. Then on four more occasions he was convicted for possession of dangerous drug. He had been convicted for having committed the offence of trafficking in dangerous drug for three times. The other more serious offence he has convicted was robbery.

The last conviction was in 2008, for two counts of trafficking in dangerous drug. He was sentenced to a total of 7½ years’ imprisonment. He was discharged in April 2013.

Learned defence counsel Mr Patrick Cheung told the court that the defendant had just bought this batch of “Ice” on that day for a price of around $3,000. The defendant intended to keep the drug for his own consumption and this quantity would have lasted about two months of consumption. He consumed about half a gramme each day. If friends would come for the drug, he would share it with him and on each occasion $200 would be charged from the friend. The defendant is not able to tell how many friends would come for the drug.

Indeed, on that day a friend had come and bought a packet of drug from him with $200. The defendant had consumed drug on that day as well.

Mr Cheung urged the court to accept this assertion in the light of the circumstances of the case: the defendant’s conviction record of possession of dangerous drug, that this assertion of self-consumption is consistent with what the defendant said during the interview, and that urine specimen obtained when the defendant was put in custody revealed positive result of amphetamine.

Mr Cheung also urged the court to consider the case on the basis that this was a case of social trafficking and that the latent risk was minimal.

Mr Cheung also informed the court that, as a result of his drug addiction, the defendant was suffering from hallucinations and is under psychiatric treatment.

Mr Cheung also informed the court that the defendant is suffering from liver cancer and is still undergoing treatment. The mental and physical health condition of the defendant are confirmed in the medical reports produced by the defence.

Mr Cheung also informed the court of the defendant’s intent to donate his organs and such intent is confirmed by letter of the Hospital Authority.

A letter of the defendant’s daughter was produced. In the letter, the daughter said there was a reunion with her father and she believed the defendant committed this offence so that he could become the guarantor for her loan to study in the City University.

The Court of Appeal held in HKSAR v Tam Yi Chun, CACC 524/2011, that in a case of trafficking in “Ice” where the narcotic content was between 10 and 70 grammes, the sentence should range from 7 years to 11 years’ imprisonment.

I see no reason in the present case to depart from the tariff.

In addition, I have to take into account the previous record of the defendant and for this I am of the view that the ultimate starting point should be enhanced by 9 months.

In all the circumstances, the starting point I will adopt is 8½ years.

In connection with the assertion of self-consumption, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen, CACC 159/2015.

All the dangerous drugs seized were found at the defendant’s home. When the defendant went out, he had no dangerous drug on him. There were paraphernalia on the table which were commonly connected with trafficking activities, but, as Mr Cheung submitted, those items would be used for self-consumption as well.

The defendant himself made confession of his intention to trafficking when opportunities arise. On the other hand, there is also information which indicates that the defendant had been drug dependent.

I am prepared to consider on the basis that a substantial proportion of the dangerous drug in the defendant’s possession was for his own consumption. At the same time, I also take into account that the offence of possession of dangerous drug itself carries a custodial sentence.

As regards latent risk, I am unable to accept that it was minimal. Quite to the contrary, my assessment is that it was quite substantial.

As regards the submission of social trafficking, I note that, even though it might have been the intent of the defendant to share the drug with his friends, he received payment for the drug.

I also have regard to the observation of the Court of Appeal in HKSAR v Wong Suet Hau that:

“It is the very fact of supply or making possible the supply to others, whether for commercial gain or not, which needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind will only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on weight of narcotics being trafficked.”

I will give a discount for the self-consumption factor, to the extent that the further discount should be calculated on the basis of 7 years.

The defendant pleaded guilty and for this reason is entitled to a one-third discount.

I have taken into account the health condition of the defendant, as indicated in the medical reports produced by the defence. The defendant has a history of mental illness, which was drug induced. He has been hospitalised and discharged when psychotic symptoms subsided. He has been attending outpatient follow-up.

In addition, the defendant was diagnosed to be suffering from cancer of liver parenchyma and is undergoing treatment. There is a medical opinion that the general health condition of the defendant is stable.

Having considered the whole of the relevant circumstances, I am of the view that the present condition of the defendant is one that calls for special consideration, in depart from the general principle as stated in cases such as R v Chan Kui Sheung [1996] 3 HKC 279, HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395, and R v Moore (1990) 12 Cr App R (S) 384.

Having regard to the whole circumstances, including what Mr Cheung has submitted on the defendant’s behalf, I am persuaded to give the defendant 2 more months of discount, on the basis of his health condition.

The defendant, please stand up.

For the above said reasons, I sentence you to an imprisonment term of 5½ years.

(Discussion re calculation of sentence)

Should be 4½.