HKSAR v. KONG TSZ CHUNG

DCCC 872/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 872 OF 2013

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to two offences of trafficking in dangerous drugs, each contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You admitted the Brief Facts, and I convicted you.

2.  What happened is this.  Dealing first of all with Charge 1, at around 8.52 pm on 10 June last, PC8831, who was PW1, saw you limping forward and acting furtively near Fu Kwok House, Tai Wo Hau Estate, Kwai Chung, New Territories.  He intercepted you, and you immediately admitted that you had dangerous drugs with you.  PW1 then took you to a nearby toilet and searched you.  He found a tissue paper wrapped around four transparent resealable plastic bags, which is E1, containing suspected dangerous drugs, under the sole of your right foot.

3.  Under caution, you admitted that it was “coke”. You said you were helping a friend, Tse Lung, to deliver it to “Ah Fu” at Lei Muk Shue Estate.  You were to get $50 for each packet.  You went on to say that you knew there were more dangerous drugs in the  hose reel on the 7th floor of Fu Kwok House.  PW1 arrested and cautioned you, and you repeated what you had said under caution, and indicated your willingness to take the officers to the hose reel on the 7th floor.

Charge 2

4.  At about 9.20 pm, you led PW1 and another officer to the fire hose reel cabinet at No 2 staircase on the 7th floor.  It was padlocked.  You took out five keys, and used one to open it.  Inside were eight transparent plastic bags of suspected dangerous drugs, E2, and two transparent resealable plastic bags, E3, containing 153 empty transparent plastic bags, all in a crisps packet.  PW1 asked you what E2 was, and you said you did not know.  It was “Ah Wing” who asked you to wait for a phone call to deliver it.

5.  Arrested and cautioned, you said you knew nothing.  You only moved them from the 9th floor to the 7th floor fire hose reel.  You asked for a chance.  At the time of your arrest, you were in possession of $6,760 and two mobile phones.

6.  In a subsequent video-recorded interview under caution, you said, inter alia:

(a) E1 was cocaine;

(b) Tse Lung would give you $50 for each delivery;

(c) Tse Lung told you three to four days prior to your arrest to retrieve the padlock and E2 and E3 from the 9th floor and then take them to the fire hose reel on the 7th floor;

(d) “Ah Wing”, a friend of Tse Lung, also called you and asked you to do the same;

(e) you took the officers voluntarily to there;

(f) you suspected they were dangerous drugs, but did not know exactly what drugs they were.

7.  Subsequent analysis showed the following:

E1 was four plastic bags containing 0.87 grammes of solid containing 0.77 grammes of cocaine;

E2 was eight plastic bags containing 100 grammes of powder containing 70 grammes of ketamine. The estimated street value of E1 was $861 and E2, $12,200.

8.  You are hitherto a person of clear record. Mr Kam then entered mitigation on your behalf.  Firstly he dealt with your personal circumstances.  He told me that you are but 17, came to Hong Kong in 2006, and you were educated to Form 4, which was incomplete.  After leaving school, you first worked as a waiter, earning some $6,000 to $7,000 a month; then you worked in a hair salon as a washer; in February 2012 you obtained work in sales and delivery until you became unemployed in April.

9.  Mr Kam indicated that present in court to support you, and I see they are here today, are your stepfather, mother, and your girlfriend.  He stressed your clear record, your lack of triad connections, and that you are not addicted to dangerous drugs.  Mr Kam accepted the offences were serious.  He stressed your remorse for what you have done.

10.  He said that you met Tse Lung while working in the hair salon, and that he offered you $50 per packet for delivering the dangerous drugs.  This was the first time that you had done such a thing.  He said that the 6,000‑plus cash in your possession was money outstanding from your delivery work, and of the two phones, one was used in the delivery business for customers, and the other was a personal phone used for friends. Quite properly, he stressed yet again your clear record, your youth, and your plea of guilty.  He then made a very important point, and that was that you were very co‑operative on arrest, and the second offence only came to light because of you telling the police officers about this.

11.  Had you not made such a voluntary confession, you would have only faced Charge 1.  Very fairly, Ms Chan, on behalf of the prosecution, accepted this.  Mr Kam then produced a letter from your parents and read out the gist of a letter from you.  In your letter you expressed your remorse.  At this point, in view of your clear record and your youth, I decided to call for a probation officer’s background report and also allowed both prosecution and defence to provide authorities in cases where the crime only became detected because of admissions made by the defendant.

12.  I adjourned the case for 14 days.  That probation officer’s report is now before me.  I have read it, and I understand that you accept its contents.  Additionally, Mr Kam supplied me with three cases on the point, and Ms Chan with one.  It is generally agreed that the gist of those authorities presented is to the effect that such admissions can, at the discretion of the court, lead to a further discount beyond the normal one-third for the plea of guilty, that there is no set formula for calculating discount; it is actually done on a case by case basis.

13.  Mr Kam, referring to the probation officer’s report, made the point that it supported much of the mitigation that had been put forward.  He drew my attention to pertinent parts of that report, and finally on your behalf he urged leniency.

14.  I turn now to the sentence.  You are a young man of clear record.  You are only 17 years of age.  You face two very serious offences, especially Charge 2.  My approach is to take an overall view of this and impose a sentence which the two offences merit.

15.  I note that Charge 2 falls within the sentencing range of 6 to 9 years, and Charge 1 of 2 to 5 years’ imprisonment.  I also find that Charge 2 would not have led to being charged against you had you not voluntarily confessed to it, that you freely and honestly made a confession in circumstances where you could have remained silent.  In that case, Charge 2 could not and would not have been laid against you.  I commend you for your honesty.  It does you great credit.  The benefit for the public is that 70 grammes of ketamine, an insidious narcotic, has been removed from circulation.

16.  I am of the opinion this is a wholly exceptional case and deserving of a substantial discount.  That is, over and above the one-third which you will receive for your honest plea of guilty.

17.  The following sentences will be imposed.  On Charge 1, I take a starting point of 2 years’ imprisonment, reduced to 16 months for your plea of guilty.  On Charge 2, I take a starting point of 6 years and 3 months’ - that is, 75 months’ - imprisonment, reduced to 50 months for your plea of guilty; and because of the special feature of this case to which I have made reference, there will be a further discount of 8 months, which is a substantial discount.

18.  That reduces the sentences to 42 months’ imprisonment.  In view of all the facts pertaining to this case, those two sentences will be run concurrently.  So you will go to prison for 42 months.