HKSAR v. TANG KWOK SHING

DCCC 395/2023

[2024] HKDC 1502

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 395 OF 2023

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REASONS FOR SENTENCE

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1.  The first defendant was charged with 3 counts of claiming to be a member of a triad society, contrary to section 20(c)  of the Societies Ordinance, Cap. 151 (Charges 1, 5 and 7), 4 counts of acting as members of a triad society, contrary to section 20(2)  of the Societies Ordinance, Cap. 151 (Charges 2, 3, 4 and 8)  and 1 count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 (Charge 6). He pleaded guilty to charges 2-4, 6 and 8 but not guilty to charges 1, 5 and 7. Upon application from the parties, charges 1, 5 and 7 are kept in court file and not to be proceeded with without the court’s leave.

Facts

2.  The first defendant admitted the Amended Summary of Facts dated 17 April 2024, which set out the details of the aforesaid charges.  I am not going to repeat all the facts here.

3.  This case relates to an undercover operation with PC 17841 as the undercover agent, who infiltrated different triad societies to collect evidence of criminal activities.

4.  On 4 different occasions in July 2017, the first defendant acted as member of a triad society in collecting protection fees from shops or taking revenge on another group of members of a triad society by calling the undercover agent and others to “show strength”, giving instruction on arrangement of manpower (including who were responsible for fighting and who were responsible for picking up weapons), instructing others to cause disturbance at shops if the persons-in-charge refused to pay protection fees, etc. (Charges 2, 3, 4 and 8). 

5.  For charge 6, the first defendant sold a pack containing 10 grammes of cocaine to the undercover agent at HK$7,000. 

6.  The first defendant was arrested on 2 December 2017.  On the same day, he took part in 14 video-recorded interviews.  Under caution, he admitted that: (1)  he was a member of Sun Yee On triad society; (2)  regarding charge 2, he did call the undercover agent to the cafe; (3)  “Fai Gor” was his big brother; (4)  “Wan Sun” means Wan Chai “Sun Yee On”; (5)  regarding charge 3, he admitted giving the phone number to others at the shop as instructed; (6)  regarding charge 4, he admitted calling the undercover agent and later met him and Marco and he subsequently gave a paper with phone number to the person-in-charge of the shop; and (7)  regarding charge 6, he admitted selling cocaine to the undercover agent.

7.  The undercover agent positively identified the first defendant at the identification parade held on 17 January 2018.

Mitigation

8.  The first defendant is aged 27, married with 3 young sons.  He is the sole breadwinner of the family.  At the time of the offences, he was aged 20. At the time of arrest, he worked as a cook earning HK$16,000 per month. Currently, he has taken up 3 jobs as he intends to save sufficient money to support his family while he is serving the sentence for this case.  He has 2 previous conviction records, which are not similar to the present offences.

9.  The defence said the first defendant is remorseful.  He is willing to bear the consequences of the crimes he committed.  The defence pointed out that the first defendant was arrested on 2.12.2017 when he was 20 years old.  He made a full confession and was prepared to plead guilty to all the respective charges.  He was on police bail.  Since then, he has been working steadily and was determined to reform himself.  He has built up a family with three young sons.  In 2023, the first defendant was charged and prosecuted for the offences of the present case.  It was submitted that there was undue delay in the prosecution of the first defendant.  It was further submitted that had the first defendant been brought to court in a timely fashion, there would be other sentencing options available as he would be under 21 years old by then. 

10.  The defence submitted the first defendant is entitled to the usual 1/3 discount and in view of the fact that the first defendant has already reformed himself, the defence urged this Court to impose a lenient sentence on the first defendant.

Sentence

11.  While the first defendant has 2 previous conviction records, as they are of different nature from the present offences, I will not consider these records in sentencing.

12.  With reference to the authorities[1] submitted by the defence, I consider the appropriate starting point for each of charges 2, 3, 4 and 8 is 15 months’imprisonment.  Given the first defendant’s plea, the sentence for each charge is reduced to 10 months’ imprisonment.

13.  For charge 6, the first defendant trafficked in 10 grammes of cocaine. According to the sentencing tariff[2], the appropriate starting point is 5 years’imprisonment.  Given the first defendant’s plea, the sentence is reduced to 40 months’ imprisonment.

14.  As Mr So for the defence has submitted, while the chronology of events shows the first defendant may have failed to report to police bail for about 2 years, the chronology of events also shows a lengthy period was taken to prepare the legal advice.  I agree there was delay in the prosecution of the first defendant and the first defendant has reformed during that period, which amounts to a mitigating factor.  For this mitigating factor, I am prepared to reduce the sentence of charge 6 by 8 months to 32 months’imprisonment.  For charges 2, 3, 4 and 8, the sentence of each charge will be reduced by 3 months to 7 months’imprisonment.  Apart from the first defendant’s guilty plea and the delay in prosecution, there is no other mitigating factor justifying further reduction of the sentences.

15.  Taking into consideration the totality principle, the sentence of the first defendant is as follows:

Charge 2: 7 months’ imprisonment, 1 month to run consecutively to the sentence of charge 6;

Charge 3: 7 months’ imprisonment, 1 month to run consecutively to the sentence of charge 6;

Charge 4: 7 months’imprisonment, 1 month to run consecutively to the sentence of charge 6;

Charge 6: 32 months’imprisonment;

Charge 8: 7 months’imprisonment, 1 month to run consecutively to the sentence of charge 6.

Total sentence is 36 months’ imprisonment.