HKSAR v. TANG KWOK HANG

DCCC 334/2019

[2019] HKDC 1678

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 334 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 23.4 grammes of a solid containing 14.2 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at about 0046 hours on 16 February this year police officers saw the defendant holding something in his left hand and acting furtively outside the ground floor of Block M, Oi Cheung House, Tsz Oi Court in Tsz Wan Shan. When PC 19654 approached the defendant and declared his police identity the defendant fled.  PC 19654 and PC 3038 gave chase.

3.  Near the Tsz Wan Shan bus station the defendant threw away a cigarette box.  The defendant was then intercepted and subdued and the cigarette box seized.  Inside the cigarette box was a transparent re-sealable plastic bag containing the cocaine. 

4.  Under caution the defendant said the drugs were for his own consumption and that he ran because he was in possession of the drugs. 

5.  The defendant was also found in possession of HKD 5,217, RMB 100 and two mobile phones.

6.  The street value of the cocaine was estimated to be between HKD 22,183 and HKD 26,419.    

Mitigation

7.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lee, including that the defendant’s father is suffering from liver cirrhosis and Hepatitis B which requires the care and attention of the defendant[2].

8.  I have read the mitigation letter written by the defendant, together with the mitigation letters written by the defendant’s parents, his sister and his employer who is willing to hire the defendant again. 

9.  I take into account that the defendant is only 24 and has a clear record. 

Guidelines

10.  The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

11.  On a purely arithmetical approach a starting point of just under 5 years and 4 months’ imprisonment would be appropriate for trafficking in 14.2 grammes of cocaine. 

12.  Taking into account the defendant has no previous convictions I adopt a starting point of 5 years and 3 months’ imprisonment. 

Own use

13.  The defendant claims that one quarter of the drugs were for his own consumption[5].  In his mitigation letter the defendant explains that after breaking up with his girlfriend he listened to his friends who told him drugs could relieve his internal stress and forget about his troubles.  After being tempted many times to try drugs he followed the instruction of his friend to buy drugs from which he would be given a quarter as his reward.  The defendant says on his way back he was intercepted and arrested by the police.

14.  Mr Cheung opposes the claim that part of the drugs was for the defendant’s own consumption and refers the court to the result of the urine test taken three days after the defendant’s arrest on his admission to Lai Chi Kok Reception Centre which was negative for all drugs, including cocaine.   Mr Cheung also submits that it is dubious that a first time abuser of drugs would take a quarter of the cocaine. 

15.  As indicated in court I do not accept the mere assertion that part of the cocaine was for the defendant’s own consumption.  Mr Lee having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim that part of the cocaine was for his own consumption.   

16.  Mr Lee further explains that the defendant would not consume all the cocaine at one time and would keep the cocaine to take when his mood was low. 

17.  Taking into account that the urine test was negative for all drugs; the cocaine was contained in one packet and that it is most unlikely a first time abuser of drugs would take a quarter of the cocaine, even if all the cocaine was not to be consumed at one time, I reject the claim that part of the cocaine was for the defendant’s own consumption. 

18.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 6 months’ imprisonment.