HKSAR v. TSE MAN FAI AND ANOTHER

DCCC 244/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2017

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REASONS FOR SENTENCE

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1.  D1 has pleaded guilty to one charge of “Trafficking in a dangerous drug”(charge 1), contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134 and D2 has pleaded guilty of one charge of “Possession of dangerous drug”(charge 2), contrary to section 8 of the Dangerous Drugs Ordinance.

THE FACTS

2.  At about 2:20 am on 18 January 2017, police officers on patrol in Ma On Shan intercepted D1 and D2, who were seated inside a private car parked at a construction site near Yiu Sha Road, Ma On Shan, New Territories, Hong Kong.

3.  Body search of D2 at the scene found 1 plastic bag containing suspected dangerous drugs (“E1”) in his right front trousers’ pocket.  Under arrest and caution, D2 said that E1 is “ice” for his own consumption.  He said that D1 knew a dangerous drugs supplier at Cheung Wah Estate, Fanling.  D2 drove them there and gave HK$500 to D1, who alighted from the car and brought back E1.

4.  Under arrest and caution, D1 said that, at about 11 pm on 17 January 2017, D2 drove them to Cheung Wah Estate.  There, D1 went to purchase E1 for HK$500 which he then passed to D2 for D2’s own consumption.

5.  Written records of interview were conducted with both D1 and D2, who both said under caution:-

(a) In the evening of 17 January 2017, they were bored and decided to buy some “ice” for consumption together. D1 called the supplier.

(b) D2 drove them to Cheung Wah Estate. There, a male handed E1 to D1 who was sitting inside the car. D2 gave HK$500 to D1, who handed it to the male.

(c) D2 then drove them to the arrest location. D1 gave E1 to D2.

(d) They were arrested before the “ice” could be consumed.

6.  Upon examination, the Government Chemist confirmed that E1 is 1 plastic bag containing 1.48 grammes of a crystalline solid containing 1.44 grammes of methamphetamine hydrochloride.

7.  The street value of E1 is approximately HK$503.

8.  At the material time, D1 trafficked in E1 while D2 was in possession of E1.

CHARGE 1 FOR D1 (TRAFFICKING)

Mitigation

9.  The criminal record of D1 shows that he had been brought to court on 3 previous occasions.  He had a total of 7 convictions recorded against him, of which five were related to dangerous drugs. He was sentenced to DATC in February this year.  D1 is still serving his sentence in DATC.

10.  The antecedents statement of the defendant shows that he is now 27 years old.  Locally born, he received education up to Form 5 level.  He was addicted to drug since 2008.  He has a son and a daughter and they live with D1’s parents and two brothers in a public housing unit in Ma On Shan.

11.  D1 had worked in the Café de Coral for 10 years. He also worked as a transportation worker before.  He made around $15,000 a month. He is the sole bread winner of the family.

12.  D1 committed the present offence by buying the ice for D2 in a hope that he could share it with D2. D1 was not engaged in commercial trafficking. Mr Lam for D1 submits that it amounts to social trafficking only. The amount of ice is 1.44g which worth $500.

13.  D1 submits a mitigation letter from his wife and a letter from Ms Chan of the Hong Kong Sheng Kung Hui Welfare Council. The letters mention the hardship now being faced by D1’s family.  He pleads for a lenient sentence from the court.

14.  D1 has no trafficking conviction.

15.  Mr Lam for D1 submits that 1.44 grammes of ice is a small quantity whereby the court can adopt a lower starting point than three years. He relies on the judgment in HKSAR v Yeung Kam Chun CACC 427/2004 where the amount of ice was 1.59 grammes, the Court of Appeal said:

“For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

Sentencing considerations

16.  The sentencing guideline for trafficking in ‘Ice’ is settled.  In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 the Court of Appeal has laid down the starting point after trial where the quantity of ice is up to 10 grammes is between 3 and 7 years’ imprisonment.

17.  Mr Lam relied on Yuen Kam Chun to support that for trafficking of small amounts of ice, the sentencing judge was not obliged to take a starting point of 3 years and it would be within the discretion of the judge to adopt a starting point lower than 3 years in consideration of the actual amount of ice involved.

18.  In the present case, the amount of ice that D1 trafficked in was 1.44 grammes, which was indeed a small amount.  If he were a first offender, the court would not need to take 3 years as the starting point: HKSAR v Tsang Chi Wah [2019] 5 HKLRD 373. However, the fact remains that he was a recidivist. He committed the present offence whilst he was on court bail in a Fanling Court case. His last conviction was in February 2017 which was also drug related. He was sentenced to DATC.  It showed that he has no interest in an attempt to rehabilitate himself.

19.  In view of the facts of this case, the quantity of ice involved and D1’s persistence in crime, the appropriate starting point should be 2 years and 6 months.

20.  Social trafficking is still trafficking in dangerous drug and should not lead to any significant discount: see HKSAR v Wong Suet Hau CACC 366/2000 at paragraph 47.

21.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal provides guidance to the court when sentencing the defendant who claims that part of the dangerous drugs is for his or her self-consumption. It was stated in paragraph 19 that “…when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 and 25% of the basic starting point.”  

22.  The prosecution also fairly accepts that there is basis to suggest D1 sharing the drugs under caution. 

23.  On the issue of self-consumption I accept  D1’s contention. He has a history of drug related offences and had been to the Drug Addiction Treatment Centre for treatment. Given that D1 had admitted the drugs was to be shared with D2, there is sufficient basis to enable the court to say that a significant proportion of the drugs was intended for self-consumption. I find that a proper discount  for self-consumption is that of 10% which results in adjustment to 27  months.

24.  I find that there are no aggravating factors, and the only mitigating factor is D1’s guilty plea. I sentence D1 to 18 months’ imprisonment on charge 1 after the one third discount.

25.  The other matters relied upon by Mr Lam in his submissions, for example, the fact that the defendant was the sole bread winner of the family.  In my view, D1 should have thought about the welfare of his family before he committed the offence.

26.  For the reasons given, I sentence D1 to 18 months’ imprisonment for trafficking in dangerous drugs. With the imprisonment term, it will effectively cause the previous DATC order to cease to have effect.

CHARGE 2 FOR D2 (POSSESSION)

Mitigation

27.  The criminal record of D2 shows that he had been brought to court on 4 previous occasions of which 3 were drug related. He committed the present offence whilst he was on court bail for another drug case in KCCC1302/2017 on 21 June 2017.  He is now serving his sentence in DATC.

DATC Report

28.  The court obtained a Drug Addiction Treatment Centre report for the D2.  According to the report, D2 has been living with his parents, elder brother and his girlfriend in a public housing unit in Ma On Shan. He received education up to F4.  Prior to his present custody, he was a manager in a restaurant, earning about $13,000 per month.

29.  D2 disclosed that he started to abuse ice between 2008 and 2010. He relapsed into taking ice in early 2013. Since then, he indulged in abusing ice.

30.  D2 was sentenced to DATC for the first time on 21 June 2017 for another offence of “Possession of a dangerous drug” (KCCC1302/2017).  His supervising officer said that D2 encountered no adjustment problem. However, his response towards counselling was passive and his determination to lead a drug abstinent life was susceptible at this moment.  His overall performance was considered to be poor. The medical officer is of the opinion that he is still a drug dependent.  In view of his weak will-power and the availability of a place in the DATC, a period of compulsory drug addiction treatment coupled with intensive supervision would be beneficial to him. Therefore, he is considered suitable for admission to a DATC under a fresh detention order.

31.  Mr Chui for D2 urged the court to follow the recommendation of the DATC report.

Sentencing considerations

32.  D2 has been at the DATC since June this year. According to section 6A of the Drug Addiction Treatment Centre Ordinance, Cap.244, if a fresh detention order is made in respect of a person who is already undergoing a period of treatment at the DATC, the first detention order shall cease to have effect.

33.  Having concluded that D2 is a drug abuser, and that he stands a good chance of rehabilitation at the DATC and after taking into account all the relevant circumstances, I sentence D2 to DATC for the charge that he is facing.