HKSAR v. LAW FONG TSANG

DCCC 795/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 795 OF 2013

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REASONS FOR SENTENCE

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1. The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. The particulars of offence avers that on 5 June 2013 at 3rd Floor, No 45 Ho Pui Street, Tsuen Wan, New Territories, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 4.06 grammes of a crystalline solid containing 4.02 grammes of methamphetamine hydrochloride and 1.27 grammes of a mixture containing 0.34 gramme of heroin hydrochloride.

The facts

3. This is a simple stop-and-search case.  The fact of the matter was on 5 June 2013, a team of police officers was conducting an anti-dangerous drugs operation in the address as provided in the particulars of charge which I was given to understand was the premises resided by the defendant.  The premises was a multi-cubicle apartment.

4. At about 1810 hours, the police officers saw the defendant exiting from the premises carrying with a shoulder bag.  The defendant was then immediately intercepted and he led the police officers into the premises.  Inside his room, a search was conducted and the police found two plastic bags containing suspected dangerous drugs in the right front pocket of the defendant’s trousers.  They were respectively known as Exhibit 1 and 2. 

5. Under caution, the defendant admitted that both exhibits contained methamphetamine hydrochloride (“Ice”) and heroin and he intended to sell both exhibits to the others to earn money.

6. Cash of HK$22,000 (Exhibit 3) was found in the shoulder bag of the defendant.

7. Later, the police conducted a more thorough search of the room and found the following exhibits in a box under a table in this room.  Those were really trafficking paraphernalia and they were:-

(1) One plastic bag containing suspected powder (Exhibit 4);

(2) One plastic bottle containing suspected powder (Exhibit 5);

(3) One electronic scale (Exhibit 6);

(4) 159 resealable plastic bags (Exhibit 7); and

(5) One pair of scissors and one lighter (Exhibits 8 and 9).

8. In a subsequent video-recorded interview, the defendant further admitted that he bought both Exhibits 1 and 2 from an unknown male at Temple Street, Yau Ma Tei and then took them home.  He further admitted that he would use Exhibits 4 and 5 to mix with the heroin. 

9. The government chemist later had examined all the exhibits of suspected dangerous drugs and confirmed that Exhibits 1 and 2 were the subject matters of the present charge whereas Exhibit 4 contained 36.01 grammes of a powder containing traces of heroin and whereas Exhibit 5 contained 15.72 grammes of powder containing caffeine which is not a controlled substance.

10. According to the facts which the defendant had admitted, the street value of the dangerous drugs of the charge would be about $3,785.

Criminal records and the background of the defendant

11. The defendant had in the past 12 previous criminal records including, as it were, a robbery charge and three possession of dangerous drugs charges and more importantly, two similar trafficking in dangerous drugs charges.  The first one being in 1997 in which he was sentenced by the District Court to 3½ years’ imprisonment.  The last one was in March 2011 where he was also sentenced by the District Court for 27 months.  He was released from the prison in September 2012.

12. The defendant was born in China and he immigrated to Hong Kong in 1979. He was educated to primary level.  He was married in 1984 but he got divorced in 2001.  In the first marriage, he had two daughters now aged 29 and 26 years old. 

13. Defendant’s counsel, Mr Paul Lee, informed the court that after his divorce, the defendant had cohabitated with his girlfriend and they have two young daughters who are now aged 9 and 5 respectively.  The first daughter is studying in the primary school whereas the younger daughter is studying in the kindergarten. 

14. The defendant had been working as a decoration worker on and off from year 2000 onwards.  He is the sole breadwinner of the family and his girlfriend is a housewife looking after the two young daughters. 

Mitigation

15. Mr Lee prefaced his mitigation on behalf of the defendant by pointing out that the role of the defendant was only a small trafficker.  He was quick to point out that the value involved of the present drugs was relatively small, only about $3,000 odd.  The reason why the defendant committed the present offence was because he wanted to earn some quick money to improve the livelihood of the family.

16. In the sentencing approach, Mr Lee properly pointed out that there were two different drugs involved, one being methamphetamine hydrochloride, or what is more commonly known as “Ice” and the other is heroin.  He urged the court to use the combined approach when calculating the sentence.

17. He also submitted to the court case authority such as the HKSAR v Yip Pik Kwai CACC593/1998 and also HKSAR v Sarkuna CACC239/2002 and CACC342/2004. Relying on these authorities, Mr Lee submitted that when sentencing the defendant, the court should ignore the presence of the heroin due to its relatively small quantity.

18. Mr Lee also fairly conceded that the defendant had two previous records of trafficking in dangerous drugs.  He pointed out that the first record of trafficking was already in 1997 which was some 16 years ago and he therefore urged the court to consider not to treat the defendant as a repeated offender at all. 

19. Lastly, Mr Lee also submitted a letter written by the defendant.  I am not going to go into the details of this letter.  Suffice it to say that the defendant had expressed remorse and he said that he had fully reflected on his misdeed and is sorry for causing troubles to his family members and loved ones and also the loss of financial support to his family members.  He said he missed his young daughters so much and he wanted the court to be as lenient as possible.

Sentencing considerations

20. Trafficking in dangerous drugs is of course a very serious offence. Anyone who was involved in this kind of criminal activity would be expected to be dealt with severely by the court.  The defendant should know better because he had already twice been convicted of trafficking in dangerous drugs offences before and he had also been sentenced by the District Court for 3½ years and 27 months respectively in the past.

21. The sentencing approach that I shall adopt in this case is one of a combined approach since here we are dealing with two different kinds of drugs.  They were all packeted one by one which was found together in the defendant’s trousers pocket. 

22. I fully agree with Mr Lee’s submission that although there are two different kinds of drugs involved, given the relatively small amount of heroin in this case in relation to the presence of the amount of the “Ice” involved, the fact that even they were treated the same as “Ice” in the same quantity, at the end of the day, it would not make much difference to the overall sentence. In approaching the sentence, I shall therefore ignore the presence of the heroin altogether.

23. The Court of Appeal had already laid down a clear guideline in relation to trafficking in relation to “Ice” in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 525.  Up to 12 grammes of “Ice”, the starting point should be 3 to 7 years’ imprisonment.  The present case involved 4.02 grammes which according to the guideline should be around 4 years and 3 months and that brings us to 51 months’ imprisonment.

24. The defendant is of course a repeated offender.  While I acknowledge what Mr Lee had said that the first conviction was more than 16 years ago, his last conviction was only in 2011 and he was just released in September 2012.  Obviously it shows that the defendant took no account of the severity of the law.  As a sentencing judge, on account of his record, I am entitled to enhance the sentence so that the defendant would be deterred and not to commit the similar offence in the future. 

25. What Mr Lee had submitted about the first record being 16 years ago can perhaps be reflected in the level of enhancement and, therefore, to that extent, I would only increase the starting point by 3 months, bring it to 54 months.

26. I understand the defendant is the sole breadwinner of the family and I do understand that his two young daughters and of course his girlfriend all look upon him for financial support.  Yet he should think twice before committing an offence and he already should know that committing a crime like this does not pay.  If he really cares for his daughters and girlfriend, he should not commit this offence at all.  The Court of Appeal had also said in so many times before that family circumstances virtually played no part in mitigation especially in serious crimes like trafficking in dangerous drugs.

27. I have of course much sympathy for the conditions of his family but in sentencing the defendant, I cannot take that into account.  I can only hope what the defendant had told me in his letter is true that he had truly reflected upon himself and the best thing that he can do to his family really is to refrain from committing any further crime in the future.

28. I will therefore use 54 months as the starting point.  The only effective mitigation is his plea of guilty for which he would be entitled to the full one-third discount.  In the end the defendant is sentenced to 3 years’ imprisonment.