HKSAR v. TANG CHUNG FAI

DCCC 975/2017

[2018] HKDC 236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 975 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug. Particulars are that the defendant on 19 July 2017 unlawfully trafficked in 23g of a solid that contained 22.5g of cocaine.

Summary of facts

2.  The defendant was intercepted by Customs officers when he went through the Customs Departure Hall at the Hong Kong-Macau Ferry Terminal at about 00:28 hours on 19^th July 2017.

3.  An ion-scan test was conducted against the personal belongings of the defendant. The test came back with positive result for cocaine. The defendant was then brought to search room M266 for further inspection.

4.  A Ziploc bag containing cocaine was found wrapped in a piece of tissue paper that was inside the umbrella that the defendant was carrying.

5.  The defendant was arrested. Under caution, he claimed that the Ziploc bag, the tissue and the cocaine did not belong to him. He did not notice them inside his umbrella, which was actually given to him by a taxi driver during some heavy raining. He claimed he did not know the telephone number of the taxi and that it was summoned by his friend.

6.  At the time of his arrest, the defendant had on him 1 mobile phone, 6 SIM cards, cash of HK$10,980.80; RMB188 and MOP10. He also had 1 Turbojet ferry ticket from Hong Kong to Macau.

7.  The contents of the Ziploc bag was later confirmed by the Government Chemist to be 23g of a solid containing 22.5g of cocaine.

8.  The estimated retail price of crack cocaine as at July 2017 was $28,980.

Previous convictions

9.  The defendant has 9 previous convictions from 3 court appearances. The first set of 3 convictions were driving related ones and should not affect the present sentencing process.

10.  The defendant was convicted for trafficking in a dangerous drug, possession of forged driving vehicle document, driving while disqualified, driving an unlicensed vehicle and using a motor vehicle on a road against third party risks on the same day in July 2009.

11.  For the trafficking, he was sentenced to 40 months’ imprisonment in the District Court. I shall not use this an aggravating factor because it was almost 7 years ago.

12.  The defendant’s last conviction was for the possession of dangerous drugs in July 2013, when he was fined $1,500.

Mitigation

13.  The defendant is 32. He was born in Hong Kong and educated up to form three level. He and his cohabitee have a 12-month old son, who lives together with the baby’s mother in mainland China and the defendant would travel frequently to visit them there.

14.  The defendant works as an agent for a casino in Macau, earning a basic salary of $25,000 per month, with a 1.2% commission on the amount his clients gambled in the casino on top.

15.  The defendant’s parents, who are 88 and 90 years old, reside in Hong Kong and the defendant would have to return to Hong Kong to take care of them.

16.  The defendant’s cohabitee wrote in mitigation, claiming that the defendant has been a responsible husband and caring father, asking for leniency.

17.  Mr Jim for the defendant refers to the urine test of the defendant that showed a positive result for the presence of cocaine just 2 days after the defendant’s arrest in the present case. He is instructed to inform the court that about half of the cocaine in this case was going to be for the defendant’s own consumption.

18.  Mr Jim did not inform the court as to how the defendant was going to deal with the other half of the cocaine that the defendant was bringing out of Hong Kong and into Macau.

19.  Mr Jim submits that a discount should be given to the defendant since ‘a significant proportion’ of the drugs were for the defendant’s consumption.

20.  Mr Jim accepts that the sentence should be enhanced based on the aggravating factor of exportation, but says that the enhancement should be less than 6 months.

Sentencing considerations

21.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is a fine of $5 million and life imprisonment.

22.  The sentencing guidelines and tariff for trafficking in heroin as laid down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine as well in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. The band of tariff for trafficking in between 10 and 50 grammes of cocaine is that of 5 to 8 years’ imprisonment.

23.  An arithmetical application of the said tariff sentence would lead to a starting point of 71 months’ imprisonment.

International element

24.  The defendant was in possession of a ferry ticket and was intercepted at the Departure Hall. The only reasonable inference must be that, had he not been intercepted, he would have brought the cocaine out of Hong Kong and into Macau.

25.  At paragraph 21 of the judgment in HKSAR v Abdallah Anwar Abbas, CACC 304/2008, the Court of Appeal stated that “it has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes.”

26.  In the case of HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal laid down broad guidelines for the enhancement of sentence for trafficking of cocaine that involved an international element. The level of enhancement for trafficking up to 250g of cocaine is that of 6 months’ imprisonment.

27.  In the present case, the narcotic contents involved is 22.5 g. I find that a proper enhancement is that of 1 months’ imprisonment.

28.  Upon adopting a starting point of 71 months’ imprisonment and enhancing it by 1 month, the defendant’s sentence is 72 months’ imprisonment.

Self-consumption

29.  It is now trite law that, in order to support a mitigating factor of self-consumption, the amount alleged to be for the defendant’s own use must be “a significant proportion” of the seized drugs[1].

30.  I had made known to counsel for the defendant that I was not prepared to accept that the defendant was in possession of a significant proportion of the drugs for his self-consumption. The defendant had elected not to give evidence on this particular issue, nor call any witness.

31.  Even though the urine specimen collected from the defendant on 21 July 2017 showed positive result for cocaine, it does not necessarily mean that a significant proportion of the seized drugs was for his own consumption. Based on the positive urine result, the defendant must have ingested cocaine before he proceeded to bring the cocaine in the umbrella to Macau. This would go against a finding that the cocaine in the umbrella were for the defendant’s self-consumption.

32.  Furthermore, the defendant has only 1 previous conviction for possession of dangerous drugs and that was 4 years ago. It does not agree with the defendant’s claim that he is still a habitual cocaine user as at the time of his arrest.

33.  The sheer quantity of cocaine that the defendant was found to be in possession of does not support the assertion that they were for the defendant’s self-consumption, even just half of it.

34.  There being insufficient evidence to suggest that half of the cocaine was for the defendant’s self-consumption, or indeed that any of the cocaine the defendant was trafficking was for his own consumption, there is to be no discount on this ground.

35.  The only mitigating factor is the defendant’s timely plea of guilty, for which he will receive the full one-third discount.

36.  The defendant is, therefore, sentenced to 48 months’ imprisonment.