HKSAR v. TAN JIALE

DCCC 391/2024

[2025] HKDC 48

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 391 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and ketamine.

Summary of Facts

2.  About 7:55 a.m. on 26 November 2023, PC 21248 (PW2)  and PC 14796 (PW3)  were on patrol in an unmarked police car.  At the junction between Chatham Road South and Prat Avenue, they spotted a private car PG7713 ("the Car")  connected to a non-payment of fine.  PW2 used the loud speaker to order the driver of the Car ("the Driver")  to stop.

3.  The Driver ignored PW2's instructions.  He instead accelerated on Chatham Road South and turned left onto Austin Avenue.  He drove dangerously along the way. Upon reaching Gascoigne Road, the Car crashed into a double-decker bus.  The Driver and the defendant (who was in the front passenger seat)  alighted from the Car and fled.  PWs 2 and 3 continued with the pursuit.  The defendant was seen holding a black plastic bag when he got out of the Car.

4.  PW2 managed to subdue the defendant at Wylie Path.  When struggling with PW2, the defendant threw a black plastic bag (E1)  on the ground.  E1 was found to contain 40 small resealable plastic bags (16 with a red seal and 24 with a blue seal)  which contained a total of 5.86 grammes of a solid containing 5.22 grammes of cocaine (collectively E2).

5.  The Car was searched by the Police and the following items were found in the storage compartment between the driver's seat and the front passenger seat ("the Compartment")  :-

(i)  a black plastic bag containing 100 small resealable plastic bags (16 with a blue seal and 84 with a red seal)  which contained a total of 14.57 grammes of a solid containing 12.39 grammes of cocaine (collectively E3); and

(ii)  1 resealable plastic bag containing 5 small resealable plastic bags (all printed with the "smiley face" pattern)  which contained a total of 2.96 grammes of a solid containing 2.49 grammes of ketamine (collectively E4).

6.  The defendant's fingerprint was found on the front nearside door of the Car.

7.  Mr. Chan (PW1), registered owner of the Car, stated that he lent the Car to a friend at the end of 2023. PW1 claimed that he did not know the defendant and had no knowledge about the drugs found.

8.  In his video recorded interview, the defendant revealed the Driver's mobile phone number.  He claimed that about 6:00 a.m. on 26 November 2023, the Driver picked him up at Prince Edward.  He drove the defendant to Ma On Shan and alighted from the Car.  After about 10 minutes, The Driver returned carrying with him 2 black plastic bags, which he then put in the Compartment.  After the collision, the defendant and the Driver both left the Car.

9.  The defendant now admits that he possessed all the dangerous drugs found in this case (i.e. E2 to E4)  for the purpose of unlawful trafficking.

Mitigation & Sentence

10.  The defendant is 18 and has a clear record.  Defence counsel Mr. Yim informed me that the defendant is educated up to Form 4.  He was born in the mainland and came to Hong Kong in 2018.  The defendant's mother left the family when he was only 2 years old.  At present, he resides with his father, stepmother, grandfather and 2 younger siblings.  In mitigation, Mr. Yim submitted that the defendant was only 17 when he committed the present offence.  He was immature and susceptible to bad influence.  As a result, he made some poor decisions.

11.  Drug abuse has been a long-term 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, courier or storekeeper)  and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

12.  Although the defendant is under 21, by virtue of section 109A(1A)  of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  I accept that as a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

13.  When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

14.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370)  and ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1).  For 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.  For up to 10 grammes of ketamine, 2 to 4 years' imprisonment.  

15.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006. In the present case, the defendant trafficked in a cocktail of drugs consisting of 17.61 grammes of cocaine and 2.49 grammes of ketamine.  For 17.61 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 67 months' imprisonment.  Similarly, for 2.49 grammes of ketamine, 28 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence. 

16.  Since cocaine is more potent than ketamine and has a larger quantity in this case, it shall form the basis of the starting point.  Hence, I adopt a starting point of 67 months' imprisonment and adjust it upward by 2 months for the ketamine, arriving at 69 months.  With the timely guilty plea, the sentence is reduced to 46 months.  I notice that the bulk of the dangerous drugs were found in the Compartment and that the Driver is still at large, there remains a possibility that the defendant was less culpable than the Driver.  On this basis, I exercise my discretion to grant him a further discount of 2 months.  I sentence the defendant to 44 months' imprisonment.