HKSAR v. LAW FONG TSANG

DCCC1156/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1156 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty plea of one charge of trafficking in dangerous drugs.  In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf. 

2.  The facts of the case are simple.  Upon search of a residential flat to which the defendant had access, the dangerous drugs in question and some packing paraphernalia such as electronic scale, resealable plastic bag, hammer and scissors were found.  Under caution the defendant admitted that the dangerous drugs belonged to him.  Some of the drugs were for his own consumption, and some would be for selling to friends.  The estimated retail value of the dangerous drugs at the material time was around $15,000. 

3.  The defendant is 52 years old.  He had received primary education in the mainland.  His employment was one of construction and decoration worker, earning about $10,000 a month.  He was living with his fiancé and their two daughters, one aged seven and the other aged two. 

4.  The defendant is not a first time offender.  He was on 11 occasions convicted.  He was first convicted in 1989 for an offence of robbery.  He was sentenced to 3½ years’ imprisonment.

5.  Then he was, on three occasions, convicted of the offence of possession of dangerous drugs.  In 1997, for an offence of trafficking in dangerous drug, he was sentenced to 3½ years' imprisonment. 

6.  He had also been convicted of the offence of going equipped for stealing and gambling.  His last conviction was in November 2007 for two charges of theft and one charge of going equipped for stealing. He was sentenced to a total of 6 months’ imprisonment. 

7.  In the present case, the defendant was possessing two types of dangerous drugs for the purpose of trafficking.  In his possession were 11.07 grammes of heroin hydrochloride and seven tablets containing 0.95 grammes of midazolam. 

8.  The Court of Appeal suggested, in the case of R v Lau Tak Ming [1990] 2 HKLR 370, that a sentence of 5 to 8 years’ imprisonment should be considered for trafficking in heroin if the narcotics content is 10 to 50 grammes.  In that case Silke VP further said that within the suggested bands factors which the court may take into account included the profit which may reasonably be expected to be derived, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, his previous history of narcotics offences and matters of mitigation.

9.  When the trafficking involved more than one type of dangerous drug, two different sentencing approaches have commonly been adopted, as identified in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.  In that case, Cheung JA said the first approach is the individual approach where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount.  The second approach is the combined approach where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upward in light of the quantity of the less serious drug in order to arrive at the ultimate starting point, but no such adjustment is required if the less serious drug is present in insignificant quantity. 

10.  Cheung JA also said no matter which approach is taken, the paramount consideration, at the end of the day, is the totality of the overall starting point. 

11.  In HKSAR v Wong Kin Kau, CACC269/2009, Tang VP indicated his agreement and added that he believed often it is the combined approach which is more likely to lead to the correct overall sentence.

12.  Having considered the overall circumstances in this case, I am of the view that the combined approach is appropriate, and obviously heroin is the more serious type of dangerous drug in this case. 

13.  It was asserted that the defendant intended to keep part of the dangerous drugs in his possession for his own consumption. Having heard counsel, I do not consider it necessary to hold an enquiry. 

14.  In all the circumstances, I am prepared to accept this assertion, but at the same time also find that the primary purpose of possession of the dangerous drugs must be for trafficking, and most of the quantity in the defendant’s possession must be for that purpose.  Besides the latent risk factor must not be ignored, and in my judgment the risk would have been high in this case.

15.  In this connection I have considered cases such as HKSAR v Wong Suet Hau CACC366/2000, HKSAR v Chong Chi Ming CACC305/2008, and HKSAR v Cheuk Kin Man, CACC294/2009. 

16.  In all the circumstances, whilst in my judgment a starting point of 5 years would otherwise have been appropriate, I will now adopt a starting point of 4½ years to take into account this last mentioned factor.

17.  The defendant pleaded guilty.  He is entitled to a one-third discount for this factor alone.  Having regard to everything said on behalf of the defendant, and all the information available to the court, I am satisfied that the defendant is entitled to further discount.

18.  I sentence the defendant to 27 months’ imprisonment.