HKSAR v. TSOI HIU KA

HCCC 343/2018

[2019] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 343 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 29 October 2018, Tsoi Hiu-ka (who I will refer to as the accused) appeared before a Magistrate at Eastern Magistrates’ Court and pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134.

The particulars of the charge alleged that the accused on 22 June 2018 at the Lok Ma Chau Customs Control Point unlawfully trafficked in a dangerous drug, that is 70.8 grammes of a solid containing 57 grammes of cocaine.

At the same hearing, the accused admitted a Summary of Facts.

The essence of that summary is that at 11.30 pm on 22 June 2018, the accused was stopped by Customs and Excise officers at the Control Point at Lok Ma Chau. The accused was in the process of departing from Hong Kong to the mainland.

The accused was searched by Customs and Excise officers and they found the dangerous drugs, the subject of the charge.

The accused was arrested and cautioned and when asked what the bags contained, he said, "Crack cocaine. These bags are drugs." He also asserted that the drugs were for his own consumption. The accused was asked how he consumed the drugs and he described that process to the officers. The accused told the officer that he had bought the cocaine at a bar in Tsim Sha Tsui. He eventually admitted that he paid somewhere between $9,300 and $14,000 for the drugs.

A little later on, the accused submitted to a video recorded interview under caution. He said that he had been unemployed and that he was a drug addict. He told the officers that he needed to take drugs once every two days. His purpose in going to the mainland was to patronise bars. He reiterated his assertion that the drugs were for his own consumption.

It is agreed that the estimated street value of the dangerous drugs was about HK$69,000 if the drugs were in powder form, and if they were in crack cocaine form, then they had a value of about $89,000.

Background of the accused

The accused is a holder of a Hong Kong identity card. He was born in the mainland in 1989. He is 30 years of age. The accused is single and lives with his parents and elder sister and elder brother in public housing in Choi Wan. He was unemployed at the time of his arrest. He had attained level of education of Form 5.

The accused has a criminal record. It comprises two convictions for theft in 2007 and a conviction for common assault in 2015. There are no drug related convictions.

Counsel for the accused has informed the court by letter dated 27 February 2019 that the assertions made by the accused that the cocaine the subject of the charge was to be taken to the mainland for personal consumption are withdrawn.

Sentencing principles

For many years, the community of Hong Kong has taken a severe view of drug trafficking-particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. There are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs.

The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To that end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case.

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. In the Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Li Sa [1994] 3 HKC 685. The Court of Appeal declared that the guidelines in R v Lau Tak Ming and Others (above) were appropriate for cocaine. The correctness of the guidelines in relation to cocaine were confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The conduct which is the subject of this charge is exporting dangerous drugs. That is conduct which is part of that which is criminalised by section 4 of the ordinance. The sentencing guidelines provided by the cases to which reference has just been made are specifically designed for conduct within the jurisdiction of Hong Kong. However, exporting a dangerous drug from Hong Kong to another jurisdiction, whether that is another part of the People's Republic of China or to a place which is outside the People's Republic of China is a serious matter and the guidelines to which references has previously been made appear to me to be applicable to an act of exporting. It matters not whether the exportation was across national or intra-national boundaries. The definition of "export" in the ordinance speaks of taking drugs out of Hong Kong. If it was an intra-national boundary, there is the dimension of the obligations of Hong Kong under a range of conventions concerning the trafficking in dangerous drugs and that would be a highly relevant factor. No less is it relevant because the intended exportation was across an intra-national boundary. This is because a very serious view is taken of the transportation of dangerous drugs (perhaps especially drugs such as cocaine) in all parts of the People's Republic of China. The penalty and treatment of offenders may vary in the mainland compared to this Special Administrative Region is not to the point. Hong Kong has a vital interest in stemming the flow of dangerous drugs from Hong Kong to any part of the PRC.

Accordingly, it has been recognised by the courts that carrying drugs across international or, as in this case, intra-national borders is an aggravating circumstance and that can be seen in HKSAR v Abdallah Anwar Abbas (above), §42-43 to which I have already referred. This approach has been followed in a multitude of cases. The authorities suggest an enhancement ranging from a few months to over 2 years. In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal (comprising Lunn VP and Cheung JA) held that if there was an international element in the trafficking of dangerous drugs above 1,000 grammes there should be an enhancement of at least 2 years. However, the court held that where the quantity the subject of the charge is less than 1,000 grammes, then the enhancement is to be at the discretion of the sentencing court.

Application of sentencing principles

The quantity of drugs seized in the present case are 57 grammes of cocaine, and under the applicable guidelines, the appropriate sentencing band for 50 grammes to 200 grammes would attract a sentence if the person was convicted after trial of between 8 years and 12 years. It seems to me that an appropriate starting point would be 8 years and 1 month.

In view of the letter from counsel for the accused, it is no longer necessary to consider what if any discount was to be accorded to the accused because the drugs were for personal consumption. It is appropriate to say that in the circumstances of this case given the quantity and value of drugs in question and that the fact that the accused was unemployed at the time made the assertion on the part of the accused that it was one that had no chance of being accepted as a factor of mitigation.

The accused is, of course, entitled to a discount of one-third from a sentence which would have otherwise been appropriate had he been convicted after trial.

In the circumstances, given Hong Kong's legitimate concern in preventing any flow of drugs across national or intra-national borders, I intend to impose an element of enhancement of the appropriate sentence by a factor of 2 months.

That makes a starting point of 8 years and 3 months. Applying the discount of one-third to that figure results in a sentence of 5 years and 6 months.

The order of this court is that you be sentenced to 5 years and 6 months' imprisonment.