HKSAR v. TAN ZIJUN

DCCC 217/2022

[2023] HKDC 24

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 217 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Mr Tan pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 5 October 2021, outside Shatin Lek Yuen Health Centre, No 9 Lek Yuen Street, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 7.29 grammes of a solid containing 5.88 grammes of cocaine.

Facts admitted by Mr Tan

2.  On 5 October 2021, at 1425 hours, Mr Tan was acting suspiciously in the street. A patrolling police constable PW1 intercepted him. Mr Tan pulled down his shirt to cover his waist area; he was also tightly holding his right fist. PW1 tried to conduct a body search on Mr Tan but the latter resisted and said, “Sorry, give me a chance.”

3.  Upon being warned, Mr Tan calmed down. A body search was successfully conducted which revealed the following: -

(a)  From his right fist: one tissue paper containing 2 transparent resealable plastic bags containing a total of 0.59 gramme of a solid containing 0.44 gramme of cocaine;

(b)  From inside his left front trousers pocket: one large transparent resealable bag containing 30 small transparent resealable plastic bags containing a total of 4.34 grammes of a solid containing 3.53 grammes of cocaine; and

(c)  Also from inside his left front trousers pocket: one large transparent resealable bag containing 6 small transparent resealable plastic bags containing a total of 2.36 grammes of a solid containing 1.91 grammes of cocaine.

4.  Soon thereafter, Mr Tan was arrested for Trafficking in dangerous drugs.

5.  Under cautioned VRI, Mr Tan stated that he knew the drugs were cocaine and they belonged to him.

6.  Mr Tan was also found to be in possession of cash of $3,034 and 2 mobile phones.

7.  The price of all the drug in the present case came to $10,960.

8.  Mr Tan now admits that he possessed all of the drug for the purpose of unlawful trafficking.

Criminal record

9.  Mr Tan has one previous dissimilar conviction recorded in January 2022. The prosecution told me the related offence occurred in June 2021 and the arrest took place about one month later. The effect is that Mr Tan committed the present offence whilst on police bail for that offence.

Antecedents

10.  Mr Tan is 17 years old (2 months short of 16 at the time of the offence). He is educated to F3 level. He dropped out of school in the same month as when the offence happened. Before arrest, he was living with his family members in private housing in Shamshuipo.

Mitigation

11.  Mr Kevin CW Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tan. The following is a summary of the mitigation submissions.

12.  Mr Tan often mingled with friends in snooker centres. That dried up his pocket money. His friend then persuaded him to traffick in drugs. The amount of cocaine (5.88 grammes)  calls for a sentence falling into the bracket of 2 to 5 years according to HKSAR v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342.

13.  It was submitted that Mr Tan committed the offence at a young age and pleaded guilty at the outset; that there is no aggravating factor within the narrow focus of the offence itself that calls for an upward adjustment. The court was urged to adopt a low starting point without embarking on an arithmetic approach.

14.  It was submitted that although commission of an offence whilst on bail might be regarded as an aggravating factor, in the case of this young defendant who committed not the same type of offences at different times, the court might exercise its discretion not to increase the starting point after all.

15.  Mr Wong specifically asked me not to sentence Mr Tan to a Training Centre.

16.  Mr Wong submitted on behalf of Mr Tan two mitigation letters in Chinese written respectively by Mr Tan himself and a social worker. The contents are generally that Mr Tan mixed with the wrong peers and committed the offence because of greed; that he is now remorseful and wishes to resume his secondary education and learn a skill. The writers urge the court to give Mr Tan a chance to start anew and to pass a lenient sentence so that he may re-unite with his family earlier.

17.  Mr Tan’s grandfather, his father and the social worker are in court to give their support to Mr Tan.

Sentence

18.  Trafficking in a dangerous drug is a serious offence. An offender will be punished severely according to sentencing tariffs set down by the Court of Appeal, irrespective of his/her age. This is to make it harder for drug lords to entice youths to do their dirty work for them.

19.  According to a purely arithmetical assessment, the starting point of sentence for a trafficker of 5.88 grammes of cocaine ought to be about 45 months’ imprisonment. I see no good reason to depart from this starting point in the case of Mr Tan, despite his youth. There is of course the aggravating factor of commission of an offence whilst on bail. Because of his youth, I will exercise my discretion not to increase the starting point.

20.  He pleaded guilty in good time so he will be entitled to a 1/3 discount. There are no other mitigating factors that will justify a further lowering of the sentence.

(Mr Tan, please stand)

21.  The sentence is therefore 30 months’ imprisonment.