HKSAR v. TANG TIT SHING

DCCC 702/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 702 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of trafficking in a dangerous drug and possession of poison included in Part I of the Poison List.

2.  The facts of this case are straightforward.  On 16 April this year, Customs officers were on patrol in the Tuen Mun area.  At about 4.15 pm, they approached the defendant because they thought he was acting suspiciously.  Upon a search of the defendant, they found a quantity of herbal cannabis in his rucksack.  The total quantity was 395.05 grammes of cannabis in herbal form, the drugs of Charge 1.

3.  Under caution, the defendant told the Customs officers that the cannabis was for his own consumption.  A house search followed.  There, officers found a much larger quantity of cannabis in several places of the defendant’s home.  In the flat was a total of 8,403.44 grammes of cannabis, all in herbal form.  They also found 21 tablets containing 0.1 gramme of nimetazepam.  There was also a total of 158 tablets of a Part I poison. Those tablets were Charge 3.  The cannabis and the nimetazepam found in the defendant’s home related to Charge 2.

4.  Defendant told the police that all of the drugs and pills were for self-consumption.  That clearly was not the case.  The officers also found in the same apartment paraphernalia used for packing drugs.  Those included electric scales, many small plastic bags, a sealing machine, rubber bands and suchlike items used to pack drugs. 

5.  As for whether the defendant possessed the cannabis for self-consumption, when he was remanded in Lai Chi Kok, a urine test was taken and there no drugs were detected in his system.  Now, in mitigation, he frankly admits that he was trafficking all of the drugs.  I have been told that the defendant was unemployed for about a year before his arrest.  As a result, he was in financial difficulty.  This led to these offences.  He accepted a job that involved him renting the premises in his name for the sole purpose of storing, packing, guarding and delivering cannabis.  He was paid $17,000 a month to do this and to take the risk.

6.  This was a sophisticated and organised set-up. Moreover, the cannabis involved was worth over a million Hong Kong dollars. 

7.  The defendant’s best mitigation is his plea of guilty.  The defendant is not a man with a clear record.  He has three previous convictions, including a trafficking-in-dangerous-drug conviction as well as a possession-of-dangerous-drugs conviction.  However, they were many years ago when the defendant was in his late teens.  

8.  I have been told in mitigation that the defendant, despite leaving school early, has had a continuous working life until he was made unemployed a year ago.  Not only did he have to support himself but he has an ex-wife and daughter that he has to maintain.  He pays his ex-wife $4,000 per month as maintenance.  He also has an elderly mother who he supports.  Because he needed income for these dependants, he committed these offences.   

9.  Obviously, I have taken into account the quantity of the drugs involved.  I also distinguish or, rather, I take note that the cannabis is in herbal form.  There are other drugs and pills involved but they are of a very small quantity, and I treat them as de minimis. 

10.  The authority for trafficking cannabis is the R v Tuen Shui Ming [1995] 2 HKC 798.  The total amount of cannabis in Charges 1 and 2 adds up to 8,798.49 grammes.  If that amount was cannabis resin, the appropriate sentencing band according to that authority would be where the drugs are between 6,000 and 9,000 grammes, a 36‑to‑48‑month starting point would be appropriate.

11.  The same authority accepts that herbal cannabis is not as strong as resin, and a sentence can be adjusted downwards where the quantity is herbal.  The Court of Appeal suggests that up to 1-year discount can be applied if the quantities are not very large.  Here, there is a large quantity but I will not go so far as to describe it as very large. 

12.  Defendant, please stand up.  I consider mitigation put forward on your behalf, the facts of the case, the role that you played and the set-up that you controlled.  I will take a global approach as all three offences occurred on the same day and out of one scenario.  I will, following that authority I have referred to, consider a starting point of 48 months for the cannabis and all the drugs in this case appropriate.  I will reduce that starting point by 12 months to reflect the fact that the cannabis is herbal, not resin.  That means a 36-month starting point.

13.  You have pleaded guilty.  You are entitled to a discount of one-third from all starting points.  Therefore, after applying this discount and taking into account the global approach and amount of drugs, I order that for Charge 1, you are sentenced to 4 months’ imprisonment; Charge 2, 2 years’ imprisonment; Charge 3, 2 months’ imprisonment; all to be served concurrently, therefore a total sentence of 2 years’ imprisonment.  You understand that sentence?

DEFENDANT: Yes.