HKSAR v. TSAI TIMOTHY

DCCC 132/2025

[2025] HKDC 2080

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 132 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant, Mr Tsai, has pleaded guilty to a single charge of trafficking in dangerous drugs, alleging that the offence took place on 25 April 2024 at a room in an estate at Ngau Tau Kok in Kowloon. The quantities of drug that we are dealing with here are 51.18 grammes of cannabis in a herbal form, narcotic content of 4.94 grammes of cocaine and narcotic of 0.04 grammes of MDMA and 7.24 grammes of THC and a further 0.24 grammes of ketamine.

2.  The facts, which have been agreed, are straightforward.  The police mounted an anti-drug operation at the room where the defendant was seen to be living, that is Room C1111 of Hei Wah House in the estate.  On the same day after making those observations, the police searched the flat and found certain items as follows:  Rolls of resealable bags.  There was a paper bag which contained what is described as THC candies. There was a further plastic bag that contained the cocaine, some cannabis in herbal form and some more cannabis in herbal form.  Finally, a bowl in which the MDMA and the ketamine were found in small bags.  A total of $5,000 was seized from the flat.  The defendant admitted under caution that the drugs seized from the flat belonged to him but he did say the THC candies were for his self-consumption and also for resale.

3.  Prosecution have particularised the value of the drugs, that is the cannabis in herbal form, the cocaine and the ketamine respectively, at $11,106, $3,715 and finally $110.

4.  The defendant is now aged 29, born on 20 May 1996 and is single.  His mitigation shows he was born in Hawaii, he previously lived with his mother in Hong Kong.  Education to Form 3 level and was working as a warehouse worker previously.

5.  Of relevance in terms of the defendant’s background are the antecedents produced by the police which show the defendant has three previous convictions dating from 2013 when he was convicted of trafficking in a dangerous drug, sentenced to a Drug Addiction Treatment Centre.  There is a not relevant conviction in 2016 and finally another conviction in 2022, again for trafficking in a dangerous drug.  This case was dealt with in the Magistrates Court where a sentence of 4 weeks was imposed. Although trafficking is a serious offence, that must have been in a small quantity of the drug.

6.  In mitigation, the defendant asks that I take into account his plea of guilty and also the nature of the drugs that he is alleged to have been trafficked in and the defendant says he is now remorseful, he is young and wishes to commence a life without drugs.

7.  The calculation of sentence will be based on the principles set out in the authorities.  I take into consideration the procedure set out in the case of HKSAR v Herry Jane Yusuph [2020] HKCA 974 which summarise the approach the court must take into six separate steps such as identifying the guideline sentence, identifying the defendant’s role, identifying where the defendant would appear within the relevant band of the guideline sentence, any aggravating factors, any mitigating factors that impose a fair, just and balanced sentence in the circumstance of the offence. Also bearing in mind that the guideline sentences are not there to be approached mathematically but are meant to be approached on the basis that the court has a discretion. 

8.  Also, I have been referred to the case of HKSAR v Majharul [2020] 3 HKLRD 146.  Reference has been made to this case because of the fact that the charge itself deals with a number of different drugs dealing with cocaine, MDMA, THC and ketamine.  This is what is known as a cocktail of drugs and specifically the case of Majharul shows there is a procedure to be adopted when approaching combinations or cocktail of drugs.  That process would involve determining the base drug to be used in calculating the starting point of total drugs by reference the most serious drug in terms of potency, in this case clearly the cocaine.  Then the calculations made of the starting point according to the quantity of the base drug.  Then one determines what addition should be made to that base drug as a result of the presence of other drugs in the charge. 

9.  Now the calculation for the drug cocaine where the quantity is 4.94 grammes, the guideline sentence would be for up to 10 grammes a sentence between 2 to 5 years would be appropriate.  Given the quantity to be 4.94 grammes, that would lead to a starting point in the region for the cocaine alone of 42 months, 3 years and 6 months.

10.  There are other drugs present, Tetrahydrocannabinol, the THC.  The calculation of that would be based on a guideline sentence where figures under 2,000 grammes for sentence could be up to 16 months’ imprisonment.  The calculation has been made by the defence and they say that the actual enhancement of sentence for that would be one-seventh of a month or 0.7 month’s enhancement.

11.  As far as the MDMA and the ketamine is concerned, having regard to the guidelines, there is no actual guideline sentence that is appropriate for those matters, being within the discretion of the court. 

12.  The figure that is arrived at under the combined approach is usually tested by three further tests.  The absurdity test, the ratio test and the conversion test.  I have considered those tests. I do not find them helpful in the circumstances of this case.  What is clear to me is we are dealing primarily with the cocaine with the addition of some minor amounts of other drugs, some of which are not even calculable by way of the guidelines given for the trafficking in those drugs.

13.  I have decided having regards to that that what I shall do is simply approach the case as follows:

I will take the starting point for sentence having regard to the presence of the cocaine, 4.94 grammes, and arrive at a starting point as a result of that cocaine of 42 months. I will take also into account an aggravating factor in this case which is the fact that there are two aggravating factors that there is in fact a combination of drugs, although the combination of other drugs is very small quantities. And secondly, that the defendant clearly has convictions for trafficking in small amounts of drugs in the past. I consider a small addition should be made to the 42 months, so I will take a starting point of 45 months in total for the defendant in respect of this case.

14.  The defendant is entitled to a full one-third discount from that plea to a final sentence of 30 months’ imprisonment.